Part IV - Paths towards Effective Ocean Governance, Implementation and Compliance

14 Legitimacy and EU Marine Governance

David Langlet

14.1 Introduction

Great expectations are pinned on marine governance,¹ including protecting the marine environment while promoting sustainable growth in ‘blue sectors’.² At the same time, marine governance is widely recognised as being complex and characterised by fragmentation.³ Many of the challenges associated with the marine environment and marine space have been described as ‘wicked’, implying that science does not provide clear answers and that addressing them is liable to generate winners and losers.⁴

It is well established that measures taken in pursuit of marine policy objectives can have significant implications for the social, economic and cultural interests and identities of individuals as well as groups of people. This applies, for example, to the establishment of marine protected areas (MPAs),⁵ measures taken to combat invasive marine species⁶ or regulation of marine aquaculture.⁷ Not surprisingly, recent years have seen increasing calls for paying more attention to the political dimensions and societal implications of marine policy and management processes in addition to the predominately natural science perspectives traditionally applied.⁸

In an EU context, the last two decades have seen the development of a comprehensive legal framework that aims to protect the marine environment, promote sustainable growth of maritime economies and ensure efficient use of marine space. The main elements of this framework are three directives: the Water Framework Directive (WFD) adopted in 2000,⁹ the 2008 Marine Strategy Framework Directive (MSFD)¹⁰ and the Maritime Spatial Planning Directive (MSPD) of 2014.¹¹ The immediate implications of some marine environmental objectives were also strengthened by the 2015 ruling of the Court of Justice of the EU (CJEU) in the so-called Weser case.¹² In this case, the CJEU established that the core environmental objectives of the WFD are binding in relation to individual projects, including many industries, infrastructure facilities and public utilities.

Against this background, it is important to pose questions about the legitimacy of the EU’s marine law and governance, not least as a fundamental element of an effective and rule of law-based legal regime for the marine realm. There are numerous ways of approaching issues of legitimacy. The approach here is one focusing on legal texts, inquiring in particular as to what extent and how they address aspects of legitimacy as well as on any guidance provided for dealing with legitimacy in the implementation or operationalisation of legal requirements. Legitimacy of EU marine law and governance is a multidimensional issue. In addition to more generic aspects, it raises questions that are particular to the EU as a unique form of regional legal and policy integration, as well as issues that are more or less specific to activities in the marine domain. Before engaging with legitimacy in this particular context, some reflection is needed on legitimacy, as such, and how it may be understood.

14.2 On Legitimacy

Much like ‘rule of law’, legitimacy is a challenging concept since it can be defined in many ways and used in various contexts. When talking about legitimacy in relation to law and governance it tends to relate broadly to ‘the justification and acceptance of political authority’,¹³ thus indicating a close connection to rule of law as a form of protection against capricious and unjustified exercise of power. Legitimate law-making and wider exercise of public authority is closely linked to ideas about democracy.¹⁴ Effective democratic governance arguably requires that the governing organs are widely perceived as legitimate.¹⁵ Legitimacy is also associated with more instrumental values. It is widely accepted that rules and decisions meet with higher acceptance and are better complied with if they are seen as legitimate.¹⁶ This in turn should decrease the need for and thus the cost of monitoring, control and enforcement.¹⁷ In this sense, legitimacy is a means of increasing compliance while reducing costs.

Discussions about legitimacy tend to approach the subject either from a theoretical perspective, often grounded in philosophy or political science, or a more sociological one. Whereas theoretical approaches are generally concerned with defining and testing various criteria for what may constitute legitimacy, the sociological ones rather aim to determine to what extent institutions, laws and decisions are de facto perceived as legitimate by those affected.¹⁸

Many attempts have been made at defining or classifying different forms or versions of legitimacy. A common division is that between output legitimacy and input legitimacy.¹⁹ Simply put, input legitimacy relates to participation and representation in decision-making and the reflection of citizens’ concerns and values in adopted laws and policies. Output legitimacy relates to the performance and effective delivery of laws and policies.²⁰ In the words of Lord and Magnette, in a democracy, ‘elections provide input legitimacy and the delivery of voter preferences secures output legitimacy’.²¹

A related concept is ‘throughput’ legitimacy, which is used to refer to the openness, accountability, transparency and efficacy of decision-making processes. Whereas this dimension is important – since, for example, incompetent or corrupt governance practices can undermine legitimacy – throughput legitimacy is no substitute for missing input or output legitimacy.²² In practice, however, the perceived fairness of relevant institutions and procedures seems to have a strong impact on the extent to which the rules and decisions produced are in fact deemed legitimate and on the propensity of people to voluntarily defer to them.²³

In relation to EU law-making, input legitimacy is associated with a major discussion on the ‘democratic deficit’ associated with, among other things, the partial bypassing of national parliaments and the strong position of the unelected European Commission in law-making, as well as the general lack of a ‘collective political identity’ underpinning EU law.²⁴ These aspects of legitimacy are largely generic to EU law in general and will not be the focus here,²⁵ although they should be borne in mind when engaging with legitimacy in relation to more specific measures or policy areas.

Although the present chapter will not, for reasons of space, attempt a systematic assessment of EU marine law and governance according to the different forms of legitimacy outlined in this section, they still constitute a useful backdrop for discussing issues of legitimacy in the more specific context of the EU’s marine legal frameworks.

14.3 Legal Frameworks for EU Marine Governance

Questions of legitimacy can be pertinently posed in relation to virtually any law or policy affecting the interests of groups or individuals or somehow arbitrating between competing objectives or values. Legal aspects of EU marine governance can in principle cover areas such as chemicals law, rules on species and habitats protection, as well as regulation of specific activities such as fishing or water treatment plants. In order to enable a more focused discussion, the analysis here deals with legitimacy in relation to EU legal acts that have a comprehensive aim in that they potentially apply to all or most activities in a particular marine area or those that affect the marine environment or marine space generally. This entails a focus on the three framework directives presented in the introduction, that is, the WFD, the MSFD and the MSPD. In the following, the three directives are briefly described with a focus on features that are particularly pertinent from the perspective of legitimacy. In addition to looking for provisions that explicitly address issues of legitimacy and fairness, those that have a clear potential to affect people’s (perceived) rights and interests, including trade-offs between rights or interests, are highly pertinent. The same goes for rules on participation and decision-making. That is followed by a more comparative analysis that also tries to point out how legitimacy may be enhanced where needed.

14.3.1 The Water Framework Directive

The WFD has several purposes, among which is to prevent further deterioration and protect and enhance the status of aquatic ecosystems and to promote sustainable water use.²⁶ The Directive is relevant for marine areas not only because it aims to regulate the quality of water in the rivers, streams as well as groundwater that feed into the sea, but also because it is applicable to coastal waters.²⁷

Under the Directive, all river basins within the territory of a Member State, together with their associated groundwaters and coastal waters, must be assigned to river basin districts. For each such district a river basin management plan must be adopted,²⁸ and programmes of measures need to be drawn up for all basins.²⁹ These programmes, which are central to the governance model of the WFD, should include measures necessary to achieve at least good water status as measured at the level of individual bodies of surface water such as a stream or discrete stretch of coastal water.³⁰ Good surface water status requires that both the ecological status and chemical status of the particular water body are at least ‘good’ on a scale from high to bad.³¹ As regards ecological status, ‘good’ signifies that relevant biological quality elements for the specific surface water body type show low levels of distortion resulting from human activity and deviate only slightly from those normally associated with undisturbed conditions.³²

However, since the CJEU decision in the Weser case, it is clear that the Member States cannot just implement the measures set out in programmes of measures. There is also a binding obligation to refuse authorisation for any project that will result in deterioration of the status of a water body or even jeopardise attainment of good surface water status, unless the project is covered by a derogation recognised by the WFD.³³ While logical from an environmental perspective, the strict application of objectives in individual cases rather than within broader programmes of measures can decrease the potential for designing protective measures in ways that are cognizant of social and cultural effects as well as broader environmental or climate concerns. While broad programmes of measures allow for some spatial and temporal variation in the way that objectives are pursued, that possibility tends to be lost or at least decreased when a specific standard or objective has to be met in each individual case. This also limits the ability to give extra weight to a competing interest in a particular situation or context, even if the effect of that can be compensated through other measures covered by the programme of measures.

The WFD itself does not use terms such as legitimacy, fairness or justice, nor does it apparently deal with many distributional, social or cultural effects of water governance.³⁴ Instead it is strongly focused on natural science concepts, while governance structures and processes are described in a technical, ostensibly value free manner. There are, however, some elements of a ‘social dimension’ in the WFD that may more clearly relate to different forms of legitimacy.

One such area is rules on recovery of costs for water services. While requiring Member States to put in place water-pricing policies that provide adequate incentives for users to use water resources efficiently, the Directive allows regard to be had to ‘the social, environmental and economic effects of the recovery’ when doing so.³⁵ There should also be an economic analysis of water use for each river basin district.³⁶ While the WFD itself says little about the purpose or nature of such analyses, a short annex on economic analysis clearly places the emphasis on cost-effectiveness and calculation of costs of water services so as to enable cost recovery.³⁷ However, non-binding guidance documents developed as part of the so-called Common Implementation Strategy (CIS), set up by the Member States, the European Commission and Norway, convey a partly different message. A guidance document on ‘Economics and the Environment’ talks about the need for understanding the trade-offs at stake, for identifying ‘the losers’ and ‘the gainers’ when assessing the economic impact of proposed programmes, and potentially addressing the need for specific measures to compensate losers.³⁸ However, the economic principles, approaches and tools highlighted in the document are strongly focused on cost-effectiveness and water pricing, without much explicit concern for social dimensions, equity or legitimacy.

The CIS guidance document on the planning process of the WFD talks about planning as having the capacity to increase the legitimacy of decisions. This is to be achieved by enabling ‘open and wide dialogue between the public, interest groups and authorities’.³⁹ This is in line with the general conclusion that in EU water and marine governance the ‘social dimension’ is predominantly seen as a matter of consultation and dialogue.⁴⁰ Although public participation is not explicitly referred to in the WFD, the Directive requires the Member States to ‘encourage the active involvement of all interested parties’ in its implementation.⁴¹ Referring to this, the CIS guidance on participation mentions the prospect of making the management of natural resources more sustainable and socially acceptable by involving the people that depend on them for their livelihood.⁴² However, this is not much elaborated. It is also emphasised, however, in the guidance document on the planning process that, among other things, equity, redistribution and social welfare can be issues equally important as economic efficiency and that water planning processes should involve reasonable alternatives and evaluate their economic, environmental, political and social impacts.⁴³

According to the Directive, socioeconomic needs can in some instances play a role in the justification of achieving less stringent environmental objectives than would normally be required.⁴⁴ Probably most important for the current discussion is the possibility to justify failure to achieve ‘good’ status or to prevent deterioration of a body of surface water when it results from new modifications to the physical characteristics of the water body, or if, in the case of failure to prevent deterioration from ‘high’ status to ‘good’ status, it is the result of new sustainable human development activities. The reasons for making the modifications or alterations must be of overriding public interest and/or the benefits to the environment and to society of achieving the environmental objectives must be outweighed by the benefits of the new modifications or alterations to human health, to the maintenance of human safety or to sustainable development. With respect to water bodies that have a ‘high’ status, this introduces some flexibility to accept new activities that are deemed sustainable, as long as they do not result in a fall of status below ‘good’. For bodies of water that are currently below ‘high’ status, it is only modifications to the physical characteristics of the water body, for example, through dredging or construction of port infrastructure, that can be justified in this way.

While these exceptions can invite excessive and unjustified use, they also enable, when applied in good faith, social needs broadly construed to be given priority in specific cases so as to avoid extensive and seemingly unfair consequences of the WFD in a particular location or for a particular group of people.

14.3.2 Marine Strategy Framework Directive

The MSFD aims broadly to ensure the integration of environmental concerns into policies, agreements and legislative measures that have an impact on the marine environment.⁴⁵ It is intended to deliver the ‘environmental pillar’ of the EU’s wider Integrated Maritime Policy,⁴⁶ which also aims to stimulate, inter alia, increased marine research, better use of marine space and blue growth.⁴⁷ The MSFD applies to all marine waters of the EU Member States,⁴⁸ but coastal waters are only covered to the extent that a particular aspect of the environmental status is not already addressed through the WFD or other EU legislation.⁴⁹

Under the MSFD, the Member States are required, subject to some exceptions,⁵⁰ to take the necessary measures to achieve or maintain good environmental status (GES) in the marine environment.⁵¹ The Directive contains a lengthy and rather vague definition of GES.⁵² In practice, what constitutes GES is determined on the basis of eleven qualitative descriptors set out in an annex.⁵³ All of these relate to the status of the natural environment, and make no direct reference to social aspects. Rather than assessing the status of individual water bodies as under the WFD, the MSFD is concerned with achieving GES at the level of so-called marine regions or sub-regions. These are large areas such as the Baltic Sea, the Black Sea or the Western Mediterranean.⁵⁴

The method for achieving GES is the development and implementation of marine strategies by each Member State.⁵⁵ In many respects, the MSFD takes a similar approach to environmental management as the WFD but does so on a larger scale and in a partly less detailed manner. Like the WFD, it is based on an implementation cycle comprising assessment, defining a desired state of the environment, implementing measures and monitoring.⁵⁶

Concepts such as legitimacy and justice are hardly used in the MSFD. It does, however, refer to ‘fairness and feasibility’ as reasons to make provision for cases where it would be impossible for a Member State to achieve the level of ambition of the environmental targets set or to achieve or maintain GES.⁵⁷ In this vein, and similar to the WFD, the MSFD allows for modifications or alterations to the physical characteristics of marine waters brought about by actions taken for reasons of overriding public interest that outweigh the negative impact on the environment, even if they result in the environmental targets or GES not being achieved.⁵⁸

Social dimensions potentially relevant for legitimacy are more explicitly addressed in the MSFD compared to the WFD. Assessments of the environmental status of marine waters are to include ‘an economic and social analysis of the use of those waters and of the cost of degradation of the marine environment’.⁵⁹ In a similar vein, programmes of measures drawn up to achieve or maintain GES must give due consideration to sustainable development and, ‘in particular, to the social and economic impacts of the measures envisaged’.⁶⁰ Additionally, in setting targets and associated indicators due consideration should be taken of social and economic concerns.⁶¹ The guidance developed on economic and social analysis for initial assessment for the MSFD is largely focused on economic aspects, and the methods proposed relate to costs valuation and distribution of the economic effects of measures.⁶² While opening up for criticism for not including other social dimensions,⁶³ this is at least a clear recognition of the fact that the marine governance measures have social and economic impacts that need a cognizant approach.

As for participation, the MSFD obliges the Member States to ensure that all interested parties are given early and effective opportunities to participate in implementation. How this is to be done is not further specified beyond the fact that it is to be in accordance with other relevant EU legislation.⁶⁴ This becomes particularly important in view of the fact that the MSFD, to a large extent, is a mechanism for the integration of environmental concerns into existing policies, agreements and legislative measures that have an impact on the marine environment.⁶⁵ In this sense, the MSFD is layered on existing regulation at national, EU and international levels,⁶⁶ which often means that the legitimacy aspects of the MSFD get mixed with similar aspects of those other legal measures.

14.3.3 Maritime Spatial Planning Directive

Compared to both the WFD and the MSFD, the MSPD is intended to take a more comprehensive approach to marine activities and resources by establishing a framework for maritime spatial planning (MSP), which aims to promote the sustainable growth of maritime economies, sustainable development of marine areas and sustainable use of marine resources.⁶⁷ It requires Member States to set up maritime spatial plans identifying the spatial and temporal distribution of relevant existing and future activities and uses.⁶⁸ Through these plans, the Member States are to aim to contribute to a number of objectives, including sustainable development of energy sectors at sea, maritime transport and the fisheries and aquaculture sectors, as well as preservation, protection and improvement of the environment. They may also pursue additional objectives, such as sustainable tourism and sustainable extraction of raw materials.⁶⁹

When pursuing these objectives through planning processes, the Member States must, inter alia, take into account environmental, economic and social aspects as well as ensuring involvement of stakeholders.⁷⁰ As for public participation, the only specific requirements in the MSPD are that means of public participation must be established by informing all interested parties and by consulting the relevant stakeholders and authorities, and the public concerned, at an early stage in the development of maritime spatial plans and in accordance with relevant provisions of EU legislation.⁷¹ The word legitimacy does not feature in the Directive, nor do equity or fairness.

In its ‘Roadmap for MSP’, published in 2008, the European Commission refers to MSP as a tool for achieving sustainable use of marine resources and as providing legal certainty and predictability.⁷² However, the strong framework character and very general obligations of the MSPD as eventually adopted leave the attainment of such effects almost entirely to the individual Member States. The Directive is explicitly ‘without prejudice to the competence of Member States to determine how the different objectives are reflected and weighted’ in their plans,⁷³ and its implementation should also to the greatest extent possible build on existing rules and mechanisms.⁷⁴ Not surprisingly, it has been questioned whether the MSPD has the ability to steer relevant spatial planning practices in a sustainable direction.⁷⁵

A further important limitation of the effect of the Directive is that coastal waters that are subject to a Member State’s town and country planning are exempted from its purview, provided that this is communicated in the relevant national maritime spatial plans.⁷⁶ Since coastal waters are where most maritime activities occur, this can significantly limit the effect of the Directive. However, if MSP is to be ecosystem based and consider land–sea interactions, as required by the MSPD, close coordination between existing town and country planning processes and planning undertaken according to the Directive is evidently needed.⁷⁷

While MSP in principle has the potential to help reconcile different spatial demands and democratise marine governance, warnings have increasingly been raised that it can also be used to entrench pre-existing power imbalances, cloak the interests of elite actors in ostensibly democratic processes and potentially even be an instrument for so-called ocean grabbing.⁷⁸ Due to the nature of the MSPD, the extent to which such effects will materialise in an EU context depends on the ways in which Member States chose to implement the Directive and the nature of their planning processes and traditions.

The EU legislator could be accused of not seriously engaging with the legitimacy aspects of MSP, but instead leaving all hard choices and trade-offs to the Member States. However, if the Member States are regarded as generally better suited to make such decisions, both in terms of subsidiarity – being closer to the relevant trade-offs and potential synergies – and due to their overall greater democratic legitimacy, this may not be negative for legitimacy. It does, however, make it hard to evaluate the MSPD as such from the perspective of legitimacy.

14.4 Concluding Discussion

Legitimacy is not a notion that is explicitly addressed by core EU marine legislation, although the potential of planning and participatory processes to enhance legitimacy is highlighted in some guidance documents. Interestingly, the WFD, which is likely to have the most tangible effects on the economic and social conditions of individuals, is least clear on how to deal with these dimensions of marine and water governance.

An important aspect of so-called output legitimacy is the extent to which politically agreed results are actually delivered. The WFD sets out substantive requirements that are – at least for those capable of comprehending the details – reasonably precise and liable to have a direct impact on what environmental quality to expect. It also enables individuals to rely on the quality standards of the Directive and to challenge individual authorisations that are inconsistent with their achievement.⁷⁹ The Weser case increased the effects of the Directive’s environmental objectives in relation to individual projects. Still, there are challenges with complexity, making it hard to understand what rights or duties actually follow from the WFD, as well as insufficient implementation by Member States. The MSFD is in this regard similar to the WFD but vaguer in its requirements, not least due to the larger spatial scales of application and higher level of aggregation, making it harder to know at a local level what to expect from the Directive and to judge if it has delivered. This problem also tends to be exacerbated by time lags between measures and effects in many natural systems.

The binding nature and partly direct applicability of environmental objectives decided at EU level could also pose a challenge to legitimacy by decreasing the ability to balance different interests and consider ‘the bigger picture’.⁸⁰ Overall, both the WFD and the MSFD have a strong focus on the environmental dimension of sustainability, and other aspects are mostly possible to accommodate through specific exemptions or the flexibility that is inherent to national implementation processes. This has the advantage of clarity; these legal acts primarily aim to protect the environment while other considerations require specific justifications or must be pursued without infringing on the environmental objectives. On the other hand, it may invite the criticism that prioritisation and decisions on trade-offs have already been made at EU level, leaving only technical details to the (hopefully) more transparent and participatory national implementation processes. In practice, however, there tends to be rather significant room for decisions on trade-offs at the national level, in particular beyond the situations covered by the Weser decision.

The need for legal frameworks dealing with ecosystems to be flexible and adaptive has itself the potential to decrease legitimacy by undermining legal certainty and foreseeability.⁸¹ All three marine directives apply the programmatic approach which entails flexibility that can be used for adaptation and enables a fair allocation of economic development and costs for environmental protection but at the same time makes it harder to know what will be required in the longer term. Indeed, there is a considerable literature debating the challenges of reconciling traditional legal virtues such as rule of law and legal certainty with the flexibility required by adaptive governance models.⁸² In practice, however, law is not static and is always subject to interpretation. Hence, intentionally adaptive legal structures are not inherently different from more traditional legal arrangements.⁸³ They can even make the inevitable adjustments to changing circumstances more transparent and easier to anticipate.

The MSPD, which is much more comprehensive in its aim than the two other directives, is also so vague in terms of substantive requirements that it hardly restricts the scope of (legitimate) national or local balancing of objectives. On the other hand, it is prone to criticism for being too thin on substance, making it impossible to know what to expect as a result of its implementation.

While the MSPD most explicitly recognises the need for considering multiple interests and objectives in marine governance, none of the marine directives is particularly clear on how to address the ‘wicked’ aspects of marine governance. Although the MSFD mandates consideration of social and economic impacts of targets and measures and a non-binding guidance to the WFD makes reference to the need for identifying and possibly compensating ‘the losers’, there is little clarity as to how this can or should be done and what results to expect. In some ways, this may be positive. The EU legislator may not be best placed to legitimately arbitrate between complex interests, and the WFD and the MSFD are explicitly focused mainly on ecological dimensions. At the same time, one could at least have expected clearer demands on the principles and processes to be used for dealing with such challenges in a transparent and legitimate way. Now, this is almost entirely left to individual Member States, making outcomes as well as processes very different between countries. Reasonably, the legitimacy of EU legal acts can suffer if what they are seen to deliver varies considerably across the Union. Both the WFD and the MSFD have also been criticised for being silent on access to justice as they do not ensure that the public have legal means to challenge the validity of an adopted programme of measures.⁸⁴

As noted previously, the perceived fairness of decision processes has clear implications for the extent to which management is deemed legitimate. This lends support to the argument that increased attention to and transparency about actual and perceived trade-offs among users and interests are important, not least in maritime planning.⁸⁵ To better address such aspects, the use of a ‘sociocultural approach’ has been proposed, dealing with issues such as procedural justice, social inclusion and knowledge pluralism.⁸⁶ However, the Member States already have tools they can employ to increase transparency and quality in the way they deal with social dimensions of marine governance. These include social impact assessment and stakeholder perceptions and interest assessment.⁸⁷

All three directives largely rely on participation for dealing with core legitimacy dimensions. While participation can be a way of enhancing both input and throughput legitimacy, participation as a provider of legitimacy is not unproblematic. Challenges pertain inter alia to defining who has a legitimate say in decision-making processes,⁸⁸ and to ensuring that participation can be genuine, with stakeholders understanding what can and cannot be changed through a participatory process as well as seeing that their participation is meaningful and can affect the outcome.⁸⁹ Sufficient time must also be allowed for deliberations and integration of varied interests and different kinds of knowledge.⁹⁰

15 Recognition of Maritime Environmental Crimes within International Law A New Global Paradigm for the Protection and Preservation of the Marine Environment

Vasco Becker-Weinberg

15.1 Introduction

Maritime environmental crimes are perpetrated in every part of the ocean and include a vast array of activities, mostly related to ship-source pollution, particularly accidental and wilful oil discharges, which are a major threat to the marine environment and human health, accounting for most of the oil pollution in the ocean. These crimes take place across the whole shipping sector, from unseaworthy vessels engaged in illegal, unreported and unregulated fishing, to oil tankers and luxury cruise liners.¹

Despite a decline in accidental and intentional discharges in recent years, the impact of human-produced incidents greatly offsets natural processes, given the large volumes of oil that can be released in a single incident. It is estimated that 53 per cent of all petroleum reaching the marine environment is human-produced and occurs near coastlines, while natural processes account for the rest.² It is also estimated that most of the 2.1Mt of oil discharged every year into the sea goes undetected.³

Moreover, as a result of the ocean being interconnected and impermeable to any political or legal divisions, maritime environmental crimes happening in one part of the ocean will affect the whole ocean. No single State is able to tackle the causes and consequences of these crimes on its own. Indeed, the existing legal rules addressing spatial and functional jurisdiction at sea result in complex multijurisdictional challenges that can cause conflict of jurisdictions and, consequently, the ineffectiveness of international law to prevent and combat maritime environmental crimes. Specific legal rules addressing maritime environmental crimes are also lacking.

The harm and damage caused by maritime environmental crimes to vast areas of the ocean and coastlines, together with destruction of vulnerable and fragile marine ecosystems and devastation of marine life, affect the livelihood of many coastal communities and have an impact on economic activities that depend on the ocean, including international navigation. They also cause psychological distress and can seriously affect the wellbeing of entire populations. Despite improvements in oil-spill response, cleanup and restoration methods, restitution of affected areas is generally very difficult, in addition to being extremely costly and time consuming, lasting for several decades.⁴ In some cases, damage is simply irreparable.

Maritime environmental crimes are committed to avoid compliance with international rules and regulations, thus obtaining substantial financial gain by not calling into port to use the necessary facilities and avoiding procedures established under national and/or international law, which are time-consuming and entail significant costs. These crimes are a quick and inexpensive solution, and the chances of criminals getting caught, prosecuted or convicted are very small.⁵ Indeed, perpetrators are organized and act in a concerted and evasive manner, with the aim of committing these crimes at sea, taking advantage of existing gaps and overlaps in international law.

No specific data record the value of maritime environmental crimes, but they do pay off.⁶ The rewards of maritime environmental crimes can be seen, for example, in the fact that illegal disposal can save a ship owner anywhere from US$80K–220K every year, depending on the size and age of the ship, the number of days at sea and how well it is maintained, which can represent 5–12 per cent of a ship’s operating costs.⁷

Maritime environmental crimes are a global problem that has been severely overlooked. This is chiefly due to lack of awareness but also to absence of a clear sense of direction by States to address these crimes and to do so in a collective manner, in order to improve the international legal response to maritime environmental crimes. These include, for example, the proposal for recognition of ecocide as a new international crime.⁸

This chapter suggests that a new global paradigm is needed for protection and preservation of the marine environment, in the shape of a rule of law that is able to deliver improved collective and effective legal responses to address maritime environmental crimes, in other words: departing from the law as it stands.

15.2 Conceptualization

Maritime environmental crimes can be broadly defined as acts committed at sea that breach national and/or international law, causing harm or damage to the marine environment. This broad definition includes acts perpetrated within and beyond national jurisdiction, as well as pollution⁹ from different sources, including ship-source pollution, such as illegal dumping,¹⁰ especially of oil and oil-bunkering, or pollution from offshore installations and structures or cables and pipelines.

Notwithstanding, there is no set definition of maritime environmental crimes, nor does international law criminalize acts or conduct considered as such. Criminalization only exists under national law, subject to States’ discretion.¹¹ Maritime environmental crimes are not permitted under international law, but they are also not subject to collective and international criminal suppression, despite the fact that they are a major threat facing the marine environment and humankind.

The proposed concept of maritime environmental crimes must be based on the recognition that individually or collectively, environmental rights are an extension of human rights. These include the right to a healthy environment, but also the right of access to information, public participation in decision-making and access to justice in environmental matters, all of which reinforce the connection between the human element and the environment.

Currently, several international and regional human rights instruments include references to the environment, but no international human rights legal instrument expressly mentions the ocean.¹² Furthermore, although there is clearly a collective interest in protection and preservation of the marine environment,¹³ international law has not made the right of each State to intercede on behalf of the marine environment in areas subject to the jurisdiction or sovereignty of other States. One State may only seek legal action against another State based on the latter’s responsibility for damage suffered, and not representing any community or collective interest, or on the basis of an actio popularis as a result of such interest being affected.¹⁴ This is most remarkable in the high seas, where all States have a clear interest in protecting and preserving the marine environment.¹⁵

Therefore, development of the notion that marine environmental rights are an extension of human rights will undoubtedly reinforce the theoretical basis of the new paradigm, which will, in turn, support the concept of maritime environmental crimes. Recognition of maritime environmental crimes must also be based on the acknowledgement that these crimes are a global problem and not one exclusively subject to national jurisdiction. Indeed, consistent with the notion in the law of the sea that problems of the ocean are interrelated and must be considered as a whole, an environmental crime committed at sea is a crime against the whole ocean. It is the marine environment and ultimately humanity that are at stake.

International environmental law is a combination of fragmented international legal instruments and general principles and rules, included in both binding and non-binding instruments. No overarching normative framework applies to international environmental law, despite the fact that there have been calls for adoption of ‘a comprehensive and unifying international instrument that gathers all the principles of environmental law’.¹⁶

However, like most, if not all, fields of international law, international environmental law suffers from several gaps and shortcomings. These are mostly the result of lack of political compromise and consensus between States, as well as the fact that implementation of international environmental law at national level varies and, consequently, hinders the possibility of ensuring a coherent international legal system. Yet, despite sparse customary international environmental law, certain rules and principles have become widely accepted and recognized by international courts and tribunals as part of the legal corpus that forms international environmental law, such as the obligation not to cause transboundary harm or damage.¹⁷

With respect specifically to protection and preservation of the marine environment, the entry into force of the United Nations Law of the Sea Convention (UNCLOS)¹⁸ altered the perception of the relation between States and the ocean, giving way to awareness of the interconnectivity of different marine ecosystems and an understanding of the duty to cooperate as a fundamental principle in preventing pollution of the marine environment. The Convention also replaced the previously dominant reactive approach towards protection and preservation of the marine environment, with adoption of preventive measures and control of the sources of pollution. Moreover, UNCLOS comprises the notion that the obligation to protect and preserve the marine environment is connected with States’ exercise of sovereignty and jurisdiction.

Nonetheless, at present no international legal regime specifically criminalizes and/or requires States to criminalize and punish acts and conduct that cause harm or damage to the marine environment.¹⁹ Indeed, although protection and preservation of the marine environment has rightly captured global attention, little or no consideration has been given to the recognition of maritime environmental crimes in international law. Furthermore, in addition to the absence of an international effective response to tackle these crimes, the multijurisdictional challenge resulting from the intricate legal rules applicable to spatial and functional jurisdiction at sea have contributed to a permissive setting in which maritime environmental crimes take place, often going unreported, undetected and unpunished.

15.3 The Multijurisdictional Challenge

In order to overcome the multijurisdictional challenge caused by the rules on spatial and functional jurisdiction at sea, it is necessary to tackle existing gaps and overlapping rules that cause conflict of jurisdictions and, consequently, the ineffectiveness of international law to prevent and combat maritime environmental crimes. In this regard, the M/V “Norstar” Case (Panama v. Italy) addressed the possibility of non-flag States exercising prescriptive jurisdiction on the high seas where flag States traditionally enjoy freedom of navigation.²⁰ This development in the interpretation and application of international law reinforces the ground-breaking approach required for development of a new paradigm, which, together with innovative solutions available in State practice, could have a game-changing effect, such as the exercise of extraterritorial jurisdiction over maritime environmental crimes.²¹

15.3.1 Spatial Jurisdiction

Depending on where maritime environmental crimes are committed and the location of the infringing vessel, the applicable law and jurisdiction can vary. This can result in crimes being committed out of sight of any national authority and/or beyond the reach of any law enforcement arm. It can also lead to near-impossible timely and effective law enforcement operations.

The ocean is divided into areas that are subject to some measure of jurisdiction by coastal States and areas that cannot be claimed by or allocated to any State. Areas within national jurisdiction are the territorial sea, internal waters, international straits, archipelagic waters, contiguous zones, exclusive economic zones (EEZ) and the continental shelf.²² The measure of jurisdiction enjoyed by States in these areas varies. In some cases (for example, the territorial sea and internal waters) coastal States have rights of sovereignty; in others (such as the continental shelf, the EEZ and, where established, the contiguous zone) they may exercise only limited sovereign and jurisdictional rights. Maritime areas beyond national jurisdiction are the high seas and the Area.²³

The rights of foreign ships or vessels – terms not defined and used interchangeably in UNCLOS – vary from one maritime zone to the other. Most importantly, a foreign ship enjoys the right of innocent passage through the territorial sea on condition that passage is innocent.²⁴ This also means that a foreign ship does not engage in ‘any act of wilful and serious pollution contrary to the Convention’.²⁵ That seems to preclude accidental pollution, in addition to creating uncertainty as to the meaning of ‘wilful’ and ‘serious pollution’, giving room for some level of discretion.²⁶ In the EEZ and the high seas the principle is that of freedom of navigation. There is no general right of innocent passage in internal waters; there, the coastal State may board a foreign ship and enforce its laws against the vessel and those on board.²⁷

15.3.2 Functional Jurisdiction

Central to the challenge caused by functional jurisdiction at sea is the principle of flag State pre-emption. On the one hand, a flag State enjoys the ‘monopoly’²⁸ of law enforcement at sea regarding ships flying its flag. On the other hand, the increasing number of ships at sea and the growing facilitation of movement of persons and goods across borders make it impossible for any flag State to monitor all ships flying its flag, as well as ensure compliance with national laws on pollution and enforcing the law.²⁹ This is even more challenging in the case of flags of convenience, where there is no genuine link between the flag State and the ship. In these cases, flag States are simply unable and/or unwilling to enforce international law.³⁰

There are also challenges facing coastal States and port States, as both are subject to specific obligations under the law of the sea to protect and preserve the marine environment, although they have limited prescriptive and enforcement jurisdiction within national maritime areas. Accordingly, coastal States have restrictive powers when a flag State fails to fulfil its obligations regarding protection and preservation of the marine environment, which are dependent on adoption of certain safeguards.³¹

Moreover, flag States that fail to protect and preserve the marine environment under domestic law are subject to the principle of state responsibility for breach of their general obligation to protect and preserve the marine environment.³² In these cases, the basis for responsibility lies in obligations inherent to the concept of sovereignty as both control and responsibility are considered in the context of international accountability.

15.3.3 Conflict of Jurisdictions

A difficult legal and multijurisdictional challenge arises when a coastal State or a flag State is unable to enforce its own jurisdiction. In these cases, it is possible to have an overlap or conflict of jurisdictions that may inevitably result in ineffectiveness of international law. For example, a coastal State having evidence that a vessel is polluting in its territorial sea or EEZ may be unable to exercise its enforcement powers if the flag State exerts its prerogative to exercise jurisdictional pre-emption, even if the latter effectively fails to do so in practice.³³ Alternatively, the flag State of a vessel engaged in pollution in the territorial sea or EEZ cannot intervene if such conduct is tolerated by the coastal State, because any enforcement action in the territorial sea or EEZ without the consent of the coastal State would be a breach of the law of the sea.

In both cases, one of the States is (willingly or unwillingly) creating a permissive environment for maritime environmental crimes to take place. The result is international law becoming ineffective, despite existing legal rules allowing for the exercise of jurisdiction and enforcement powers. In these cases, crimes would go unpunished, despite being detected and reported.

15.4 The Importance of International Cooperation

Important differences exist between environmental crimes taking place at sea and those on land. The maritime dimension of environmental crimes is a departure from the factual and legal reality of environmental crimes taking place on land, within the territory of one single State or across the territory of more than one State. On land, evidence of environmental crime, such as illegal transportation of waste, most notably hazardous waste and increasingly of plastic,³⁴ is more ample and easily obtained. Likewise, existing legal regimes addressing environmental crimes on land are greatly advanced and provide a more efficient response, particularly regarding responsibility and liability, including that of corporations.

Perpetrators use deceit and concealment as part of their modus operandi. In most cases, crimes occur while the vessel is on route, taking advantage of growing maritime traffic and avoiding detection, as well as during nighttime when visibility is low, seeing that detection of oil discharges relies on visual inspection.³⁵ Moreover, damage at sea is not always easily detected.³⁶ Even in situations of accidental pollution, ships often fail to report for fear of legal and financial repercussions.

Establishing causation can also be extremely difficult and is dependent on States cooperating by sharing information and intelligence, in addition to collaborating at operational level together with international law enforcement agencies. Also relevant in this regard is the need to ensure a certain level of harmonization with respect to the standard of evidence admissible under different national jurisdictions.³⁷

In 2018, Interpol headed an international operation involving 276 law enforcement and environmental agencies across 58 States and a global network of 122 national coordinators. This operation lasted one month and carried out 5, 200 inspections that resulted in approximately 185 investigations and detected more than 500 offences, including illegal discharges of oil and garbage from vessels, shipbreaking, breaches of ship emissions regulations and pollution in rivers and land-based runoff to the sea.³⁸

The following year, in 2019, Interpol led an operation encompassing sixty-one States and regional law enforcement partners, which identified thousands of illicit activities behind severe marine pollution. The preliminary results of this concerted operation that lasted one month, gathering more than 200 enforcement authorities worldwide across all continents, revealed more than 3,000 offences, detected during 17,000 inspections. These offences were committed primarily to avoid the cost of compliance with environmental legislation.³⁹

These examples highlight the vital importance of international cooperation between States and international law enforcement entities, such as Interpol⁴⁰ and Europol,⁴¹ for gathering and sharing data and evidence, establishing causation and acting in a coordinated, timely and effective manner. However, the prevailing interpretation of applicable international law is that criminal acts and conduct that constitute maritime environmental crimes are subject to the exclusive jurisdiction of national law, even though only a few States have legislation on maritime environmental crimes and even fewer exercise jurisdiction. The United States is one of those States that has efficiently exercised prescriptive and enforcement jurisdiction. In addition to accepting and rewarding collaboration by whistleblowers,⁴² the United States established exterritorial jurisdiction through the Oil Pollution Act of 1990, in addition to the well-known Aliens Tort Claims Act of 1789.⁴³

Lastly, regarding international cooperation, it should be noted that there is no international body to monitor maritime environmental crimes or measure performance and progress, and identify ways to enhance cooperation between States. Existing organizations such as the International Maritime Organization or the United Nations Office on Drugs and Crime do not have the competence to tackle these crimes, despite the natural contiguity of their mandates in terms of protection and preservation of the marine environment⁴⁴ and combating transnational organized crime or providing maritime law enforcement capacity building.⁴⁵ Consequently, important governance gaps exist between different organizations and a lack of aggregated information regarding the full impact of maritime environmental crimes throughout the world.

In short, lack of cooperation results in the ineffectiveness of international law to prevent and effectively combat maritime environmental crimes.

15.5 Is There Room for Maritime Environmental Crimes within International Law?

Despite the shortcomings of international law for not including specific rules on maritime environmental crimes, this does not mean no room is available for maritime environmental crimes in international law. It is necessary to consider the unity of international law and the need to achieve the functional systemic integration of different legal regimes. No international legal instrument is a self-contained regime and is certainly not impermeable to other legal regimes. Systemic integration can help fill the gaps and maximize efficiency of fragmented legal rules.

In order to deliver an improved collective and effective legal response to address maritime environmental crimes, it is necessary to go beyond the law of the sea and into other sources of international law. This is because maritime environmental crimes straddle different fields of international law. Prima facie, these include the law of the sea, international environmental law and international criminal law but also human rights law, as environmental rights are also human rights.⁴⁶ Indeed, international law has gradually widened the range and reinforced protection of environmental rights. This is the case for the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention),⁴⁷ which has influenced national and regional legislation on recognition of procedural environmental rights, as is the case for the European Union and its Member States.⁴⁸

The international legal framework on protection and preservation of the marine environment consists of several international legal instruments, in addition to regional frameworks and non-binding guidelines and recommendations from different international and regional organizations. The most relevant instruments addressing ship-source pollution are UNCLOS and the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the 1978 Protocol (MARPOL 73/78).⁴⁹ These instruments were drafted in the wake of the 1967 ‘Torrey Canyon’ and the 1978 ‘Amoco Cadiz’ disasters involving oil tankers, which revealed the urgent need for improvement and enforcement of preventive measures in light of a rapidly expanding shipping sector and new developments in the field of marine pollution control. This called for adoption of more stringent requirements for ships entering or nearing States’ waters in order to eliminate substandard ships.⁵⁰

Although international legal instruments are not directly applicable to maritime environmental crimes, they bear relevance. In addition, when integrated with other sources of international law they can substantially improve the international response to maritime environmental crimes. Moreover, international liability rules in relation to environmental damage are still developing, notwithstanding general principles of international law that impose responsibility and liability for illegal acts, or the adverse consequences of lawful activities, many of which are included in the 2001 International Law Commission Draft Articles on State Responsibility, and some are considered to reflect customary international law.⁵¹ In this regard, a new paradigm will enable establishment of communication veins where none exist at the moment as a result of the gaps caused by fragmentation of international law.

Perhaps the strongest example of the ability to establish communication veins can be found in the Rome Statute of the International Criminal Court (ICC), by clearly establishing a link between international criminal law and the environment. In the definition of war crime the Statute considers ‘intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.⁵² In this regard the proposal to introduce ‘ecocide’⁵³ as a new international crime under the Rome Statute,⁵⁴ in addition to a new preambular paragraph and amending Article 5, can undoubtedly contribute towards a change of paradigm.⁵⁵

In order to achieve the ultimate goals of recognition of maritime environmental crimes within international law, no distinction should be drawn as to whether these crimes are committed in wartime or in peacetime. Instead, there should be integral protection of the environment under international criminal law.⁵⁶ Nonetheless, the underlying rationale of the example provided by the Rome Statute could be expanded, mutatis mutandis, and possible communication veins replicated between different legal regimes that are not sufficient, on their own, to support the concept of maritime environmental crimes within international law.

However, since international law is essentially state-centric, one could question how environmental rights can be interpreted and protected under the existing rules, when there is no international legal instrument establishing international criminal responsibility of natural or legal persons for maritime environmental crimes. This question exposes the deep disconnect between international law and protection of the marine environment from criminal acts, particularly as most maritime environmental issues are global in nature and not the specific problems of one or a group of persons.

Also challenging under international law is the need to demonstrate that pollution has had a harmful effect on the rights of persons and not simply a general deterioration of the environment.⁵⁷ With respect to individual criminal responsibility, it should be noted that Article 25 of the Rome Statute determines that the ICC wields jurisdiction over natural persons. So, should ‘ecocide’ be recognized as a new international crime within the jurisdiction of the ICC, the Court would have jurisdiction over a person who commits ecocide and, consequently, who would be individually responsible and liable for punishment under the Rome Statute, without prejudice to the responsibility of States under international law. However, the Rome Statute does mention corporate criminal responsibility.

Regarding the need to show harmful effect, it should be noted that with recognition of maritime environmental crimes comes a new perspective, one that envisages protection of the environment for its own sake and ultimately that of humanity.⁵⁸ As mentioned in the introductory remarks, there is a need for a new global paradigm that is able to deliver an improved collective and effective legal response to address maritime environmental crimes, departing from what the law currently is and contributing towards progressive development of international law. In this regard, the inter-normative dialogue between international and national law could make a significant contribution. Indeed, although international environmental criminal law is an emerging field of international environmental law, there are examples of state practice involving prescription of maritime environmental crimes.

Similar to the development and progressive codification of international law, national legislative developments are also connected with environmental disasters that too often demonstrate the inadequacy of protection regimes to deter and prevent environmental crimes but also to punish those responsible and provide adequate remedies. This was the case of the US Oil Pollution Act of 1990, adopted following the 1989 Exxon Valdez oil spill disaster off the coast of Alaska, and the US Act to Prevent Pollution from Ships of 1980 in order to implement MARPOL 73/78.

National laws addressing environmental crimes vary considerably. Some are very lenient and others very stringent. Some impose strict liability, while others do not. Very often States adopt a complex system where environmental criminal law coexists with civil liability and administrative regulation, as is applicable to natural persons and/or to legal persons, namely corporations. In this regard the 1999 Erika and 2002 Prestige disasters involving oil tankers, respectively off the coasts of France and Spain, are a clear reminder of how lack of inter-normative dialogue can lead to conflict between different sources of law and pose serious liability and jurisdictional challenges. It also demonstrates the many obstacles facing environmental criminal law when these incidents take place at sea and the difficulty in applying international and national law.⁵⁹

Therefore, development of the new paradigm should also focus on the inter-normativity and reciprocal influence between international, regional and national law, taking into consideration the growing expansion of both international and regional law with respect to the marine environment. For example, by establishing extraterritorial jurisdiction with respect to maritime environmental crimes States are able to extend the applicability of the law and the use of penalties beyond national borders. This is the case of the US Oil Pollution Act of 1990, which provides that its criminal provisions may apply to foreign nationals beyond its territory, giving the USA a broader range for action than provided under international law. These and other similar national legislative developments regarding the exercise of prescriptive and enforcement jurisdiction at sea can significantly influence international law.

15.6 Conclusions and Outlook

The ocean is getting busier. The increasing number of ships at sea and the growing facilitation of movement of persons and goods across borders constitute a serious challenge to individual flag States in regulating and monitoring all ships flying their flag. This is also a challenge for coastal and port States, because of the limitations imposed by spatial and functional jurisdiction at sea.

Moreover, the shipping industry is entering a new era, with the introduction of unmanned ships. Likewise, there are new usages and activities in the ocean, in addition to global threats, such as climate change, sea level rise and ocean acidification. These pressures are having a significant impact on the marine environment and humankind, but none more so than maritime environmental crimes.

The body of rules and principles applicable to protection and preservation of the marine environment, drafted in the 1970s and early 1980s during the III United Nations Conference on the Law of the Sea and other codification efforts, does not meet current expectations and the environmental rights discourse. Simply put, existing international legal rules do not echo the overall concern for protection and preservation of the marine environment, and neither do they meet the expectations of those looking for implementation and enforcement of more stringent and effective rules. There is no international legally binding rule, body of rules or principle that criminalizes or establishes an obligation for States to criminalize transnational organized maritime environmental crime.

Consequently, recognition of and adherence to the notion of transnational organized maritime environmental crime would have the effect that criminalization would no longer be dependent solely on domestic law, even though it would be difficult to overcome the limitations resulting from the existing legal framework applicable to prescriptive, and especially enforcement, jurisdiction at sea. In this regard, proposals for a new international crime such as ‘ecocide’ could potentially lead the way for further development of international law and of the legal tools necessary to ensure a collective and effective legal response to maritime environmental crimes.

In the meantime, under the current international regime, States have very limited powers of enforcement when a flag State fails to fulfil its obligations regarding protection and preservation of the marine environment, despite the fact that, arguably, flag States that fail to protect and preserve the marine environment under domestic law are subject to the principle of state responsibility. In these cases, the basis for responsibility lies in the obligations inherent to the concept of sovereignty as both control and responsibility, taking into account the context of international accountability.⁶⁰ States remain responsible for lack of due diligence and ultimately for allowing the persistence of permissive circumstances for acts of pollution to occur and remain unpunished. A difficult legal challenge arises when a coastal State or a flag State with jurisdiction is unable to enforce its own jurisdiction.

Therefore, States must lawfully and legally assert their maritime jurisdiction, both spatial and functional. This should also include extraterritorial jurisdiction.

Following the exercise of prescriptive jurisdiction, States must also establish the situations and conditions for the exercise of enforcement jurisdiction, or maritime law enforcement, in accordance with international law and in particular the law of the sea, including with respect to boarding, detention, arrest, search and seizure of a ship. States must further provide internal remedies and access to justice.

Lastly, international cooperation is essential to ensure effective protection and preservation of the marine environment, as well as to address circumstances favourable to organized crime, such as the presence of corruption, bribery and obstruction of justice. Law enforcement cooperation and the sharing of investigative tools and evidence and intelligence are particularly important, including for the purpose of enforcement and prosecution.

16 Mending the Net State Responsibility for Nationals Engaged in IUU Fishing?

Pieter van Welzen

16.1 Introduction

Illegal, unreported and unregulated (IUU) fishing is a serious threat to the world’s food resources, frustrates efforts to conserve and protect marine living resources and ecosystems, and threatens geopolitical stability.¹ The resources and economies of developing States, in particular, are badly affected by IUU fishing operations in their EEZs.² The purpose of this chapter is to consider whether it can be argued that States whose nationals are owners or operators of fishing vessels involved in IUU fishing activities have an obligation to act against those persons.³

Although a considerable number of international, governmental and non-governmental organisations are involved in the fight against IUU fishing, it still occurs on a large scale, and the rules, as currently applied, have for various reasons not proven to be very effective. For example, the UN Convention on the Law of the Sea (UNCLOS)⁴ imposes primary responsibility on coastal States to regulate fishing operations in their EEZ and to enforce such regulations. However, States, in particular developing States, may not have the resources and capacity to regulate fishing in their EEZ and to enforce such regulations meaningfully. Moreover, although international law gives flag States an important role in the fight against IUU fishing, not all flag States are willing to fulfil this task or capable of doing so. This is often the case with States that offer flags of convenience.⁵ However, there are also more established flag States whose vessels are regularly involved in IUU fishing, without the flag State appearing to take much visible action against such activities.⁶

A further reason, intertwined with the failure of coastal States and flag States to act against IUU fishing operations, is the relationship between these operations and the involvement of transnational corporations that are active ‘behind the scenes’, often as operators or beneficial owners of the vessels involved in these operations. Given the profits that can be made by engaging in IUU fishing, these corporations are willing to take considerable risks. Therefore, the sanctions that can be imposed by coastal States for IUU fishing infractions are not treated as a deterrent but as a cost of doing business.⁷ Often advantage is taken of weaknesses in the administrative and enforcement systems of coastal States and port States.⁸ The financial interests involved also result in the use of more sophisticated methods for circumventing applicable regulations, such as trans-shipment of fish from fishing vessels to refrigerated transport vessels or by reflagging vessels on a regular basis.⁹ Corporations that engage in IUU fishing are sometimes involved in other, related, criminal activities such as forced labour, corruption, human trafficking, smuggling or drug running.¹⁰

By prohibiting persons from being involved in IUU fishing activities, for example as operators or owners of vessels, and imposing appropriate sanctions in the case of breach of the prohibition, fewer incentives will exist for IUU fishing operations.

16.2 IUU Fishing: Current Framework

16.2.1 UNCLOS

UNCLOS has created various maritime zones, each with distinct rights and responsibilities.¹¹ With regard to the EEZ, UNCLOS contains provisions that deal with fishing activities by vessels flying the flag of another State. Article 56(1)(a) UNCLOS grants sovereign rights to a coastal State for exploring and exploiting, conserving and managing marine resources in its EEZ. Paragraph (b) of the same provision grants a coastal State jurisdiction for protection and preservation of the marine environment. Article 62(4) UNCLOS describes, on a non-enumerative basis, the topics of the laws and regulations that a coastal State may impose in connection with fishing and related activities in its EEZ. Next to these rights, UNCLOS also imposes obligations on coastal States, requiring them to promote the objective of optimum utilisation of the living resources in their EEZ¹² and to apply proper conservation and management measures so that the living resources in their EEZ are not endangered by over-exploitation.¹³ A coastal State must also cooperate with other States for the conservation of marine species and stocks that are shared with such other States.¹⁴ Article 192 UNCLOS applies to all maritime zones created by UNCLOS, including the EEZ, and obligates States to protect and preserve the marine environment.¹⁵

Under Article 58(3) UNCLOS, for example, a State that exercises its rights in the EEZ of another State must comply with the laws and regulations adopted by that other State. Although this rule is addressed to States, it has been interpreted as an obligation on a State to ensure that its nationals, when fishing in the EEZ of another State, observe the regulations of the coastal State.¹⁶ Pursuant to Article 62(4) UNCLOS nationals of States fishing in the EEZ must comply with the conservation and other fisheries-related measures of the EEZ coastal State. If a vessel breaches the coastal State’s fisheries regulations, that State can, pursuant to Article 73(1) UNCLOS, act against the relevant vessel and its crew, including boarding, inspection and arrest of the vessel and initiation of judicial proceedings.¹⁷ However, the arrested vessel and its crew must be promptly released upon the posting of a reasonable bond or other security.¹⁸ Sanctions imposed on crew members may not include imprisonment or any form of corporal punishment.¹⁹

16.2.2 ITLOS Advisory Opinion

Since UNCLOS contains no specific provisions about the responsibility of flag States for fishing in the EEZ of another State, the question arose whether a coastal State could hold a flag State liable for IUU fishing by vessels flying its flag in that coastal State’s EEZ. The Sub-Regional Fisheries Commission, whose membership consists of a number of West African States that suffer from IUU fishing in their EEZs, requested the International Tribunal for the Law of the Sea (ITLOS) for an opinion on this question, which ITLOS provided in April 2015 (the ITLOS Advisory Opinion).²⁰ ITLOS stated therein that the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing in the EEZ rests with the EEZ coastal State.²¹ However, this primary responsibility does not release other States from their obligations in this respect.²² With regard to the role of flag States whose vessels conduct IUU fishing activities in the EEZ of another State, ITLOS observed that UNCLOS contains general obligations for the conservation and management of marine living resources, set out in its Articles 91, 92, 94, 192 and 193, which are to be met by flag States in all maritime areas regulated by UNCLOS, including the EEZ of another State. It also noted that Articles 58(3) and 62(4) contain specific obligations in this respect with regard to fishing activities conducted by nationals of a flag State in the EEZ of another State.²³

ITLOS held that a flag State must ensure compliance by its vessels with the relevant conservation measures enacted by a coastal State for its EEZ.²⁴ This is a due diligence obligation and not an obligation of result.²⁵ Accordingly, a flag State’s liability under international law in connection with IUU fishing arises from its failure to comply with the due diligence obligation and, therefore, a flag State is not liable for IUU fishing in the EEZ of another State by vessels flying its flag if it has taken all necessary and appropriate measures to meet this obligation.²⁶

The ITLOS Advisory Opinion focuses on the obligation of vessels to comply with a coastal State’s fisheries regulations. However, the vessel is generally not the addressee of such regulations. These are typically directed at persons who control the movements of the vessel and the activities in which the vessel is involved, such as the master, crew members, owner and operator of the vessel.²⁷ These persons are often not nationals of or resident in the flag State concerned. This means that, for enforcement of its regulations against foreign owners, operators and crew members of the vessel, a flag State will be dependent on cooperation from other States, which may not be forthcoming. It is not clear whether ITLOS considered this point when concluding that the flag State was responsible for IUU fishing activities conducted by vessels flying its flag as well as by its nationals.²⁸ There is no reference in the ITLOS Advisory Opinion to the responsibilities of states of which owners or operators of fishing vessels are nationals.

16.2.3 Other Instruments

Recognising that relying on flag and coastal States to fight IUU fishing may not be sufficient, other ways to act against IUU fishing must be considered. One could prohibit landing fish that originate from IUU fishing, which is the main purpose of the Agreement on Port State Measures (PSMA).²⁹ The PSMA allows, and in some cases requires, a State to refuse entry to its ports³⁰ or use of port services³¹ by a vessel that has been or is suspected to have been engaged in IUU fishing. Other measures, such as those adopted by the EU³² and the United States,³³ are market focused³⁴ and enable the competent authorities to restrict the import of fish that has been caught by vessels flagged to a State that condones IUU fishing activities.³⁵ However, the impact of EU and US measures appears to be limited as a result of a lack of implementation and application.³⁶

There have also been suggestions to characterise IUU fishing as organised crime under the United Nations Convention against Transnational Organized Crime (UNTOC).³⁷ If it is considered as a ‘serious crime’ under UNTOC, then a legal basis would exist for extradition, mutual legal assistance and law enforcement cooperation. However, since Article 73(3) UNCLOS prohibits imposition by a coastal State of prison sentences on crew members involved in IUU fishing, it is questionable whether a coastal State can qualify IUU fishing by foreign vessels in its EEZ as a form of organised crime as defined in UNTOC.³⁸

It has also been suggested that if it is not possible to act against IUU fishing activities themselves, one could consider prosecuting the offenders for other, related criminal activities, which may be easier to characterise as organised crime.³⁹ This alternative is, however, not so straightforward. First, there must have been such a related criminal activity. Second, a State should have regulatory and enforcement jurisdiction to prosecute the crime. If reliance is placed on the flag State of the vessel or the affected coastal State, similar capacity issues as mentioned earlier in the context of IUU fishing offences may arise.

16.3 Challenging the Persons behind the Scenes

16.3.1 Owners, Operators and Other Beneficiaries

It is recognised by law enforcement agencies and non-governmental organisations that if the international community wants to fight effectively against IUU fishing, action needs to be taken against the persons and organisations that operate behind the scenes of IUU fishing and on whose behalf their activities are undertaken, such as the operators and beneficial owners of vessels.⁴⁰ Various actions could be taken against these persons. More traditional criminal and administrative sanctions could be imposed.⁴¹ In particular, where financial sanctions are not substantial, these could be combined with confiscation of (estimated) profits.⁴² Alternative sanctions could include withdrawal of subsidies or tax benefits, tax increases,⁴³ revocation of licences,⁴⁴ restrictions on insurability or voidance of existing insurance policies.⁴⁵ These alternative sanctions can be useful in situations where the activities of the persons themselves are legitimate. As a result of these measures, their activities will become more expensive or riskier. They will, however, have limited impact on activities by criminal organisations that do not pay taxes or are not beneficiaries of subsidies.

The effectiveness and impact of sanctions is largely dependent on the ease with which sanctions can be imposed and the ability to enforce them effectively.⁴⁶ The owners and operators of vessels involved in IUU fishing may be located in States that are potentially in a better position in terms of capacity and experience to take enforcement action than the affected developing coastal or flag State.⁴⁷ From that perspective, it would be desirable if the State where the persons are located were able to exercise both regulatory and enforcement jurisdiction.

It is acknowledged that transnational corporations involved in IUU fishing typically operate through a network of nominee companies, thereby making it more difficult to create a direct link between the registered owner of a vessel that is engaged in IUU fishing and its beneficial owner.⁴⁸ However, the use of ‘big data’, anti-tax evasion and anti-money laundering regulations make it easier nowadays to identify the beneficial owners of companies.⁴⁹

Furthermore, if being involved in IUU fishing as owners and operators of vessels is already sanctionable, it may not be necessary to prove a direct link between particular illegal fishing activities of a vessel in a State’s EEZ (with an in flagrante arrest of the vessel), and other forms of evidence could be used, such as an involvement in the organisational or financial aspects of IUU fishing operations, the marketing of the resulting fish or fish products, or documentary inconsistencies. The State where the corporations are located could also treat their involvement in IUU fishing as a form of organised crime so that the cooperation arrangements of UNTOC would apply.⁵⁰

16.3.2 Exercise of Jurisdiction

A State whose nationals are involved in IUU fishing as owners or operators of a fishing vessel could have a meaningful role to fulfil in the fight against IUU fishing. What jurisdictional basis could it use for this purpose? First, it could do so by applying the so-called active personality principle.⁵¹ On the basis of this principle, a State can assert criminal jurisdiction over the conduct of its nationals abroad.⁵² This personality link could be extended from nationality to residence or domicile if the connection is strong enough to meet the jurisdictional purposes in question.⁵³ It may also be possible for a State to create jurisdiction over activities connected to IUU fishing that have taken place or are deemed to have taken place within its territory.⁵⁴ It could, for example, provide that it is illegal within its territory to organise, direct or finance activities that result in a breach of the fishing laws of another State. This will create territorial jurisdiction of the State concerned.

A number of States already have legislation in place that addresses nationals who are involved in IUU fishing operations. For example, the EU IUU Regulation provides that nationals who are subject to the jurisdiction of a Member State should neither support nor engage in IUU fishing, including by engagement on board or as operators or beneficial owners of fishing vessels included in the EU IUU vessel list.⁵⁵ It also provides that Member States must take appropriate action with regard to nationals identified as supporting or engaged in IUU fishing.⁵⁶ Spain and Portugal have included provisions in their legislation that implement these obligations.⁵⁷ Other States, such as New Zealand and Australia, also prohibit the involvement of their nationals in IUU fishing.⁵⁸

Another interesting example is the US Lacey Act.⁵⁹ In the context of IUU fishing, this prohibits the import, export, transport, sale, receipt, acquisition or purchase in inter-state or foreign commerce of any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State or in violation of any foreign law.⁶⁰ It therefore targets US nationals involved in the supply chain of illegally caught fish. Since the Lacey Act refers to foreign law generally, it covers IUU fishing in another State’s EEZ.⁶¹ It was applied in a case involving the import into the United States of lobster that was illegally caught in South Africa’s territorial waters and EEZ. In 2017, after extended legal proceedings, the person who directed the illegal activities, a certain Mr Bengis, was given a prison sentence of 57 months. The courts also imposed a forfeiture order of USD 37 million. A substantial part of the funds recovered from Mr Bengis was handed over to South Africa as compensation for the losses that it suffered due to these illegal fishing activities.⁶²

16.4 Obligation to Act against Nationals Involved in IUU Fishing?

16.4.1 UNCLOS and Responsibility for IUU Fishing Operations

States whose nationals (or residents) are engaged in IUU fishing operations can take measures against those persons. The next question is whether they have an obligation under international law to do so.⁶³ There are indeed grounds for arguing that there is such an obligation. It may in this context be useful to look at the provisions of UNCLOS that are relevant to fishing and the conservation of marine resources in a State’s EEZ. As mentioned previously, Article 192 applies to all States that are a party to UNCLOS, Article 62(4) applies to the nationals of other States who are fishing in a coastal State’s EEZ and Article 58(3) to all States with an activity or interest in the coastal State’s EEZ. Therefore, although the ITLOS Advisory Opinion links the obligation to comply with conservation measures to flag States (also as a result of the questions that ITLOS was asked), the provisions to which it refers are not limited to flag States. Although applying to the high seas only, Article 117 UNCLOS is another provision with a reference to ‘nationals’. It has been suggested that the term ‘national’ should extend to individuals and entities who operate behind the scenes, including by piercing the corporate veil.⁶⁴

Article 62(4) UNCLOS refers to nationals of other States fishing in another State’s EEZ.⁶⁵ The question here is whether ‘other States’ refers only to vessels and nationals of the vessel’s flag State or whether it could also include other States, for example the States of which the operators or owners of the vessel are nationals. As mentioned earlier, there are various States whose fisheries laws include provisions that apply to the owner or operator of a vessel or provide that an owner or operator can be held liable for breaches of its fisheries laws. The ‘other States’ to which Article 62(4) UNCLOS refers should therefore in my view also include the States of which such owners and operators are nationals.⁶⁶

16.4.2 Obligation to Act against Nationals Involved in IUU Fishing?

According to the ITLOS Advisory Opinion, Article 192 UNCLOS imposes on all States parties to UNCLOS an obligation to protect and preserve the marine environment. This applies to all maritime areas, including those encompassed by an EEZ.⁶⁷ This provision was also discussed in the South Chinese Sea Arbitration award,⁶⁸ where the arbitral tribunal considered it well established that Article 192 UNCLOS entails a positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, the negative obligation not to degrade the marine environment. The arbitral tribunal emphasised that Article 192 UNCLOS sets forth obligations not only in relation to activities directly undertaken by States and their organs but also also obligations to ensure that activities within their jurisdiction and control do not harm the marine environment.⁶⁹ This could imply that a State is required to take action against persons (such as owners and operators of vessels involved in IUU fishing operations) under its jurisdiction who adversely affect the marine environment in an area under the control of another State, such as another State’s EEZ.

The notion that States have a general obligation to ensure that their nationals are not involved in IUU fishing (and therefore not limited to vessels flying its flag) can further be found in paragraph 18 of the FAO International Plan of Action to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA IUU), which provides policy guidance for States to support national efforts to combat IUU fishing.⁷⁰ This paragraph calls on all States to take measures or cooperate to ensure that their nationals do not support or engage in IUU fishing and to cooperate in identifying those nationals who are the operators or owners of vessels involved in IUU fishing. In its technical guidelines for the implementation of this paragraph, the FAO observes that the measures to be taken could include laws prohibiting nationals from engaging in IUU fishing, even if the activity in question takes place aboard a foreign vessel or in waters under the jurisdiction of another State.⁷¹

In line with the IPOA IUU, in the proceedings leading to the ITLOS Advisory Opinion, New Zealand argued that similar duties to those imposed on flag States may also fall on other States in certain circumstances. Such duties are then imposed in order to address evasion of legal responsibility by operators that deliberately choose to flag their vessels in States that fail to properly discharge their duty of effective control. New Zealand stated that in such circumstances, there is concurrent responsibility on the part of the State of nationality of those operating the vessel. It also held that States also have a responsibility to exercise effective control over their nationals, including the beneficial owners or operators of vessels, in order to prevent and deter them from engaging in IUU fishing.⁷²

Moreover, the UN General Assembly regularly adopts resolutions in relation to IUU fishing.⁷³ In its unanimously adopted resolution of 8 December 2020, it

[u]rges States to effectively exercise jurisdiction and control over their nationals, including beneficial owners, and vessels flying their flag, in order to prevent and deter them from engaging in illegal, unreported and unregulated fishing activities or supporting vessels engaging in illegal, unreported and unregulated fishing activities, including those vessels listed by regional fisheries management organisations or arrangements as engaged in those activities, and to facilitate mutual assistance to ensure that such actions can be investigated and proper sanctions imposed.⁷⁴

Although General Assembly resolutions are as such not considered to have binding effect, this resolution’s unanimous adoption, the fact that it repeats the principles set out in previous resolutions and its translation into state practice as described earlier would suggest that it reflects at least the development of a norm.⁷⁵

16.5 Conclusion

The traditional approach of combating IUU fishing, with strong reliance on flag State enforcement, has proven not to be effective due to use of flags of convenience and stateless vessels and the involvement of internationally operating organisations with considerable financial interests in IUU fishing. This chapter suggests involving other States in the fight against IUU fishing, in particular those States in which owners and operators of vessels engaged in IUU fishing activities are located. Although the focus under UNCLOS for challenging IUU fishing in a State’s EEZ has been on coastal States and flag States, it can be argued that UNCLOS also obliges States whose nationals are directly or indirectly involved in the fisheries sector to ensure that those nationals do not engage in or support IUU fishing. Such obligations could be based on the ITLOS Advisory Opinion, that is, a due diligence obligation to ensure that a State’s nationals refrain from being involved in IUU activities, including as operator or owner of a vessel engaged in fishing in the EEZ of another State, and to comply with the conservation measures applying to that EEZ.⁷⁶

17 The Advisory Jurisdiction of the ITLOS From Uncertainties to Opportunities for Ocean Governance

Carlos A. Cruz Carrillo

17.1 Introduction

The advisory function of the plenary of the International Tribunal for the Law of the Sea (ITLOS or Tribunal) has existed since the first rules of the Tribunal, adopted in October 1997, pursuant to Article 16 of the Statute of the ITLOS. This judicial function remained disused and undisputed until 2015 when the Tribunal delivered the advisory opinion Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC Advisory Opinion).¹ On that occasion, the ITLOS considered that the legal basis for its advisory function derived from the foundational agreement of the requesting entity, in connection to Article 21 of its Statute and Article 138 of its Rules. As explained in this contribution, many States and scholars criticized the Tribunal for exercising this judicial function whereas others supported the decision to do so. Notwithstanding the debate, the advisory function prevails as a tool to enhance the rule of law for oceans and adapt it to tackle new challenges. Indeed, after nearly forty years since the adoption of the United Nations Convention on the Law of the Sea (UNCLOS),² new challenges call for re-interpreting and calibrating UNCLOS. For example, climate change alone poses legal challenges that were even unthinkable during the Third Conference on the Law of the Sea, including the rise in sea levels³ or ocean acidification.⁴ Similar complex issues derive from technological advances and the quest for natural resources and maritime power. In this context, understanding the advisory function of the ITLOS stands as a tool in enhancing ocean governance.

This chapter aims at elucidating the scope of the advisory function of the ITLOS plenary. In particular, it revises the configuration of this judicial function and underscores the potential use of ad hoc jurisdictional agreements to request advisory opinions. To that end, this contribution will first present the utility of advisory opinions to strengthen the rule of law for oceans; second, it will then examine ambiguities within the legal basis of the advisory function of the ITLOS to determine the plausibility of using special agreements to request advisory opinions..

17.2 Advisory Opinions and Ocean Governance

Since the Permanent Court of International Justice, certain international judicial bodies can exercise the judicial function of delivering advisory opinions.⁵ These can be defined as a judicial service to assist with comprehension and compliance with international obligations.⁶ This function allows identification of the abstract field in which the rules apply, their application to concrete situations and the legal consequences flowing from their application.⁷ The main difference with a contentious jurisdiction is that the outcome of an advisory jurisdiction is not binding and thereby does not entail stigmatization as in contentious proceedings.⁸ Exceptions to this are particular cases where an advisory opinion functions as a preliminary ruling,⁹ as a dispute settlement mechanism¹⁰ or as an appeal instance,¹¹ entailing a compulsory effect.

Notwithstanding its non-binding nature, an advisory opinion entails authoritative statements that contribute to clarification of the applicable law and, in so doing, help to prevent disputes from arising.¹² Likewise, the legal findings in advisory opinions are generally authoritative for the members of a legal system and even foster judicial cross-fertilization between courts and tribunals.¹³ As stated by the ITLOS, judicial determinations in advisory opinions carry no less weight and authority than those in judgments.¹⁴ Therefore, advisory opinions have the same value under Article 38 (1) (d) of the Statute of the International Court of Justice. Furthermore, they might prove to be useful in designing international and domestic public policies, or as suggested, preventing future disputes.

In the context of the law of the sea, recent challenges are finding new legal vacuums in the UNCLOS. Put differently, it seems unclear whether this treaty provides guidance or if it is necessary to adopt new rules. Far from fostering an amendment to the Convention, the advisory function stands as a significant tool to shed light on how to interpret and apply UNCLOS to recent issues. An urgent example is climate change and its effects on the rule of law for oceans such as ocean acidification, ocean deoxygenation or rising sea levels.¹⁵ The International Law Commission (ILC) is already considering the topic within its agenda.¹⁶ In this regard, an advisory opinion on the legal consequences of sea-level rise might assist the ILC’s work on the issue by identifying applicable rules and, perhaps, providing novel interpretations.¹⁷ Moreover, an opinion could provide factual and legal statements that later can foster international climate change litigation.¹⁸ Another example is marine litter and plastic pollution, which entail cross-cutting legal considerations in international law. An advisory opinion on this point might provide important material for negotiating a new global instrument. In this context, Article 55 ter of the draft text of the ABNJ agreement introduces a jurisdictional clause for requesting advisory opinions from the ITLOS.¹⁹ If accepted in the final text, Article 55 ter will be helpful in interpreting the provisions of the agreement in the context of technical and scientific changes. Judge Lijnzaad proposes the possibility of an ITLOS Special Chamber on Marine Biodiversity bestowed with an advisory function.²⁰

Another aspect to consider is the utility of two previous ITLOS advisory opinions, which resulted in main inputs to global ocean governance and the development of international law.²¹ The first opinion entails valuable considerations on the scope and content of environmental obligations towards the marine environment in the context of deep seabed mining.²² Some authors consider this opinion to be the most comprehensive treatment of international environmental law by any international court or tribunal.²³ The second advisory opinion provided legal inputs for tackling illegal, unreported and unregulated fishing.²⁴ Thus, advisory opinions indeed stand as a judicial mechanism to enhance the rule of law for oceans. Nevertheless, in the particular case of the ITLOS plenary, the architecture of its advisory function places legal questions on its operation by potential requesting entities.

17.3 Architecture of the ITLOS Advisory Function: Vacuums and Opportunities

In international law, everything exists because of the consent of subjects of international law. Among other aspects, States can agree to establish an international tribunal with particular judicial functions to bring legitimacy to the norms and institutions created by a regime where they will perform its judicial functions.²⁵ Consent operates as a legal condition of jurisdiction imposed by the mandate providers and the parties to a specific dispute; and as an important factor in legitimating the operation of international courts and tribunals.²⁶ Therefore, international judicial bodies can exercise those functions conferred by their creators. In the case of the advisory function of the ITLOS plenary, this statement calls for analysing its legal basis and operation.

This section elaborates on four points: (1) The legal basis of advisory jurisdiction; (2) the scope of the ‘international agreements’ requirement; (3) special agreements for advisory proceedings; (4) the discretionary powers of the ITLOS.

17.3.1 The Legal Basis of the Advisory Function

The legal architecture for the advisory function was the subject of debate among States, scholars and practitioners, following the SRFC Advisory Opinion. The discussion pointed to the lack of express reference to this function in UNCLOS and its annexes; ultra vires action by the ITLOS while drafting its rules of procedure, among others.²⁷ Arguably, the advisory jurisdiction of the ITLOS derives from Article 21 of its Statute. According to this provision, the jurisdiction of the ITLOS ‘comprises all disputes and all applications submitted to it in accordance with the convention and all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal’.²⁸ The advisory jurisdiction may be expressly absent from Article 21, however: in the SRFC Advisory Opinion the ITLOS considered that the phrase ‘all other matters’ must include advisory opinions.²⁹ The Tribunal endorsed this interpretation in 1997 when it adopted its first rules of procedure. Let us remember that the Tribunal has to frame rules for carrying out its functions, in particular, rules of procedure, pursuant to Article 16 of the Statute.³⁰ In this regard, it has been established that the rules of procedure are a source of law that reflects the consent of States and the judicial body´s conception of the rules and powers needed to carry out its functions.³¹ Bearing this in mind, the 1997 Rules of the ITLOS included Article 138, as a step to regulate the advisory function encompassed in Article 21 of its Statute. Therefore, Article 138 of the Rules elaborated on the requirements in order to request an advisory opinion, namely: the existence of an international agreement related to the purposes of UNCLOS; a legal question; and submission of a request by an authorized body.³²

As a judicial body, the ITLOS is bestowed with inherent powers that exist ipso facto for any judicial body,³³ whose function is to safeguard its judicial functions.³⁴ Among these powers, the principle of compétence de la compétence enables the Tribunal to determine the scope of its jurisdiction.³⁵ The ICJ established that in the absence of any agreement to the contrary, an international tribunal has the right to decide as to its own jurisdiction and has the power to interpret for this purpose the instruments that govern the jurisdiction.³⁶ In the present case, no prohibition is established in UNCLOS or in the Statute for the Tribunal to exercise an advisory function. Moreover, in the SRFC Advisory Opinion, the ITLOS clarified that the basis of the advisory jurisdiction is an international agreement conferring this judicial function on the Tribunal, and that Article 138 of the Rules mainly elaborates on the requirements to seise jurisdiction.³⁷ Therefore, the scope of the advisory function under analysis derives from the Statute and the Rules. Yet, it is the international agreement where States will consent to confer this function on the Tribunal.

17.3.2 The Requirement of ‘International Agreement’: A Restrictive or Broad Approach?

In 2015, the ITLOS underscored that Article 21 of the Statute did not itself establish the advisory jurisdiction but rather the other agreement conferring jurisdiction on the Tribunal. It recognized that the other agreement and Article 21 are interconnected and constitute the substantive legal basis for the advisory jurisdiction under analysis.³⁸ It is possible to affirm that under Article 21 of the Statute and Article 138 of the Rules, an international agreement is the cornerstone to the advisory jurisdiction. It is the international agreement that encompasses the advisory jurisdictional clause, the relation to the object and purpose of UNCLOS and the body authorized to request an opinion. Yet the question arises whether all types of international agreement can establish this jurisdiction; and if yes, what kind of control should be exercised by the Tribunal. In international law, an international agreement must be concluded between States/international organizations in written form³⁹ and governed by international law, whether embodied in a single instrument or in two or more related instruments, whatever its particular designation.⁴⁰ Thereby, any international agreement complying with these requirements and those others envisaged in Article 138 of the ITLOS Rules could be the basis for the advisory function of the ITLOS. In order to consider possible consequences, it is pertinent to analyse this terminology under a restrictive and a broad approach.

17.3.2.1 Restrictive Approach

Under this approach, the wording ‘international agreement’ should comprise exclusively those substantive agreements encompassing a jurisdictional clause in favour of the ITLOS. By substantive agreement, this research considers that the following would qualify: foundational instruments for international or regional organizations (e.g., regional fisheries management organizations), multilateral agreements related to the purposes of the UNCLOS (e.g., the forthcoming ABNJ agreement) or bilateral treaties regulating determined maritime areas. Following a restrictive approach will require two main tasks for requesting an advisory opinion: first, finding a treaty containing a jurisdictional clause, and if missing, exploring the institutional channels to amend the treaty to include a jurisdictional clause, or creating a new organization comprising a jurisdictional clause in its constitutive instruments. Second, it will require observing the internal procedure established in that treaty to request an opinion from the ITLOS, such as discussing in the plenary of the organization the possibility of requesting an advisory opinion and the legal questions to be submitted.

Let us remember that the advisory jurisdiction of the ITLOS in the SRFC Advisory Opinion emanated from 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.⁴¹ In that case, the Conference of Ministers of the SRFC enabled the Permanent Secretary to request an advisory opinion from the ITLOS. An interesting development in this regard happened during the 26th Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC).⁴² Antigua and Barbuda, and Tuvalu signed an agreement to establish the Commission of Small Island States on Climate Change and International Law (COSIS).⁴³ Inter alia, COSIS aims at developing and implementing fair and just global environmental norms and practices. Moreover, COSIS will be able to request advisory opinions from the ITLOS on the legal responsibility of States for carbon emissions, marine pollution and rising sea levels. Despite the early stage of COSIS, its foundational agreement complies with a restrictive reading of Article 21 of the Statute and Article 138 of the Rules to establish the advisory jurisdiction.

17.3.2.2 Broad Approach

Under a broad approach, the terminology ‘international agreement’ should encompass those instruments that can be characterized as a treaty under the rules of international law, such as those reflected in Article 2 (1) (a) of the 1969 and 1986 Vienna Conventions on the Law of Treaties⁴⁴ and the jurisprudence.⁴⁵ Moreover, pursuant to Article 138 of the Rules of the ITLOS, the additional requirement is that the agreement should be related to the object and purpose of the UNCLOS and should contain a jurisdictional clause. Therefore, the broad approach of the international agreement may include substantive agreements, foundational instruments and any other type of agreement fulfilling the requirements of law. This opens some opportunities not only for international organizations but also to States willing to use the advisory function of the ITLOS. Among these possibilities is the use of agreements on filing a request for an advisory opinion. Judge Wolfrum endorsed this interpretation, but it points to the relevance of identifying the question to be raised.⁴⁶ This scenario could foster a judicial dialogue among States, international organizations and the Tribunal concerning the application and interpretation of UNCLOS. At the same time, it is crucial to explore the scope and limits of using ad hoc jurisdictional agreements to request advisory opinions.

17.3.3 Ad Hoc Jurisdictional Agreements: Requirements and Foresights

Following the broad approach, the use of ad hoc jurisdictional agreements seems feasible to seise the ITLOS. The use of these instruments may enhance the rule of law for oceans due to the plurality of actors that can request advisory opinions without engaging in institutional processes to obtain authorization. This section examines the requirements and the limits of ad hoc jurisdictional agreements.

According to Professor Thirlway, a special agreement or compromis is an agreement for the immediate reference of a specific dispute to settlement by a judicial or arbitral body.⁴⁷ Special agreements reflect the consent of the parties to submit disputes to a judicial body voluntarily. In doing so, the parties can delimit or not the jurisdiction of the tribunal.⁴⁸ In the context of the advisory jurisdiction of the ITLOS, an ad hoc jurisdictional agreement should consider the requirements contained in Article 138 of the Rules of the ITLOS. In that context, this section will address four points. First, the minimum requirements for establishing the advisory jurisdiction in a special agreement. Second, the personality to conclude special agreements. Third, the configuration of the legal question. And fourth, the relevance of the discretionary power of the ITLOS as a tool in contentious matters.

17.3.3.1 Minimum Requirements

Considering the wording of Article 21 of the Statute and 138 of the Rules of the ITLOS, an ad hoc agreement should fulfil two main points. First, the agreement should be related to the purposes of the UNCLOS. Second, it should contain a jurisdictional clause granting an advisory function to the ITLOS.

Let us remember that, according to the preamble of UNCLOS, its object and purpose is to establish a legal order for the seas and oceans that will facilitate international communication, and will promote peaceful uses of the seas and oceans, equitable and efficient utilization of their resources, conservation of their living resources, and study, protection and preservation of the marine environment.⁴⁹ Bearing this in mind, the parties to an intended ad hoc agreement should underscore the relevance of requesting an advisory opinion as a means to interpret UNCLOS provisions and fulfil its obligations. For example, an ad hoc agreement to request an advisory opinion on the sea-level rise could highlight the importance for the parties to clarify Articles 5, 7, 13 or 121 of UNCLOS as a mechanism to guarantee equitable use of the oceans in the context of climate change. As will be shown, this aspect is closely related to the legal question, and both should synergize to demonstrate the utility of an opinion for the requesting entity.

Regarding the second point, the ITLOS recognized in 2015 that its advisory jurisdiction derived from an international agreement providing for that jurisdiction.⁵⁰ Thereby, in an ad hoc jurisdictional agreement, the jurisdictional clause is the cornerstone. The jurisdictional clause expresses the consent of the parties to grant advisory jurisdiction to the ITLOS. Moreover, the clause can comprise some parameters for seising the tribunal, for example, the exhaustion of a particular internal process, such as having previous consultations among the members or the filing of a request by a determined entity. This aspect of the clause may differ according to whether the requesting entity is a State, international organization or both.

17.3.3.2 Personality to Conclude Special Agreements

One of the central issues when considering ‘special agreements’ is who among the subjects of international law can conclude an ad hoc jurisdictional agreement. Article 20 of the Statute of the Tribunal offers some clues:

1. The Tribunal shall be open to States Parties.

2. The Tribunal shall be open to entities other than States Parties in any case expressly provided for in Part XI or in any case submitted pursuant to any other agreement conferring jurisdiction on the Tribunal which is accepted by all the parties to that case.⁵¹

[Author’s italics]

In principle, State parties to the UNCLOS can bring proceedings to ITLOS. However, the second paragraph of Article 20 broadens the ratione personae scope of this provision with the wording ‘entities other than States Parties’. This opens the floor to include international organizations that are not entitled to participate in proceedings (e.g., International Maritime Organization (IMO), Intergovernmental Oceanographic Commission of UNESCO (IOC-UNESCO), Commission on the Limits of the Continental Shelf (CLCS), among others). Similarly, one may wonder if a State that is not a party to the UNCLOS (e.g., the United States, Turkey or Colombia) could trigger the jurisdiction of the ITLOS.⁵² In the context of a special agreement, what matters under Article 21 (2) is that the legal instrument conferring jurisdiction to the ITLOS identifies the entities authorized to seise jurisdiction and reflect their consent.

On this issue, Article 138 (2) of the Rules establishes: ‘A request for an advisory opinion shall be transmitted to the Tribunal by whatever body is authorized by or in accordance with the agreement to make the request to the Tribunal’.⁵³ A literal interpretation of this provision provides for two assumptions. In the first place, a request for an advisory opinion should be filed by a body authorized under the agreement. This assumption encompasses a scenario where an international agreement is the foundational instrument for an international organization. Thereby, as occurred in the SRFC Advisory Opinion, it requires the international or regional organization to previously identify and authorize a body or an office within it to perform the function of requesting entity before the Tribunal. The second assumption is that the request for an advisory opinion should be transmitted to the Tribunal in accordance with the agreement. Under this assumption, the personality is open to whatever entities – States and organizations – are identified and authorized by an international agreement, in this case, a special agreement. Likewise, this allows for the agreement to establish any institutional precondition to trigger the advisory jurisdiction (e.g., previous consultation between States or within an international organization). In this vein, academic discussion entails divergent opinions on the topic. In the first place, Professor Rosenne considered that the requirement for a request to be transmitted to the Tribunal by a duly authorized body does not permit a State, or a group of States, to initiate advisory proceedings otherwise than through a duly authorized body.⁵⁴ Conversely, Professor Gautier and Judge Jesus propose that nothing in the wording of Article 21 of the Statute or Article 138 of the Rules restricts the possibility for States to conclude an international agreement.⁵⁵

Hence, the question of personality in the advisory jurisdiction remains open for international and regional organizations and States. This plurality of actors will increase the judicial dialogue among different actors to enhance the UNCLOS system. As part of this dialogue, the public interest is another factor that will foster identification of issues and a subsequent request for an advisory opinion. However, the issue of personality needs to be tested by the different actors and assessed by the Tribunal to avoid abuses attempting to circumvent the principle of consent to adjudication.

17.3.3.3 Legal Question: The Functional and Legitimate Tests

Under international law, a legal question is framed in terms of law, from which it derives problems of international law and is susceptible to a reply based on law.⁵⁶ In this regard, the legal question should follow the logic in a manner that the answer delivered by the Tribunal represents assistance to the requester and the entire legal system while performing its international obligations.⁵⁷Article 130 of the Rules of the ITLOS, applicable mutatis mutandis to advisory proceedings of the ITLOS plenary, states that the Tribunal must consider whether a request for an advisory opinion relates to a legal question pending between two or more parties.⁵⁸ If this is the case, the interested parties may appoint a judge ad-hoc to act during the proceedings,⁵⁹ a practice also present in other jurisdictions.⁶⁰

In the context of a special agreement, the legal question is relevant for identifying the legitimate interest and the general purpose of the advisory opinion. Both aspects are elements that the ITLOS should consider in the admissibility analysis of the request. Regarding the first aspect, the legal question must relate to the duties performed by the international organization or to the obligations performed by States. This is in line with Article 131 (1) of the Rules of the ITLOS.⁶¹ In the SRFC Advisory Opinion, the ITLOS assessed whether the legal questions were related to the performance of the obligation encompassed in the MCA Convention.⁶² In the case of States requesting an advisory opinion, it should be enough to address the importance and necessity of obtaining an advisory opinion for the performance of rights and duties enshrined in UNCLOS. Likewise, the legal question should pursue an answer that may be useful for the entire system. That is, whether the legal questions addresses an issue of major relevance for the international community with particular consequences on the requesting States (e.g., the effects of climate change in the ocean), the general purpose of the opinion may be accredited and will open the floor for other entities to present their views during the written and oral proceedings. For example, in its advisory opinion on human rights and the environment, the Inter-American Court of Human Rights (IACtHR) estimated that an opinion on the topic would ‘be of real value for the countries of the region because it will identify, clearly and systematically, the State obligations in relation to the protection of the environment within the framework of their obligation to respect and to ensure the human rights of every persons subject to their jurisdiction’.⁶³

The formulation of the legal question is perhaps the more complex stage of requesting an advisory opinion from any judicial body. Drafting a legal question implies an examination of the purposes of requesting an advisory opinion and how it will be useful for the requesting entity. As mentioned, this process will comprise previous consultations among the members of the requesting entity, mainly a debate between States. There should be a consensus on the goal pursued with the opinion, the drafting and content of the legal question and, perhaps, an assessment of the possible scenarios that a judicial body may take when issuing an opinion.

17.3.3.4 Discretionary Power of the ITLOS

An important feature of the advisory jurisdiction among international judicial bodies is their discretionary power to decide on whether they exercise its jurisdiction in light of a compelling reason.⁶⁴ These powers have been described as a wider margin of appreciation of the general considerations of admissibility of requests for advisory opinions to protect the integrity of judicial functions.⁶⁵ In the particular case of the ITLOS, Article 138 of the Rules confers these powers on the Tribunal to consider exercising its advisory function even when the conditions of jurisdiction are satisfied, if there is a compelling reason.⁶⁶ The literature and the jurisprudence identify as main compelling reasons: lack of consent of an interested party, lack of factual documentation and evidence, and the highly political nature of the question.⁶⁷ From among all of these grounds, perhaps the question of consent to adjudication is the most relevant. The ICJ has stated that the consent of an interested State is relevant not for the Court’s competence but for an appreciation of the property of giving an opinion, for instance, if the request aims at circumventing the principle of consent to adjudication.⁶⁸ On this point, it has been considered that to determine whether a request is circumventing the lack of consent to adjudication, it is necessary to compare the subject matter of the bilateral dispute with the legal question presented by the request.⁶⁹ The ITLOS should then assess whether the legal question and the reasons behind the request may transgress the principle of consent to jurisdiction. As mentioned, analysing the context and the scope of the legal question are relevant for this assessment. While ensuring this, the Tribunal will be safeguarding its legitimacy as a judicial body within the UNCLOS.

17.4 Conclusions

Following the 2015 SRFC Advisory Opinion, the advisory jurisdiction of the ITLOS plenary has not been used despite the vast legal uncertainties arising from new challenges to ocean governance. One may wonder whether the reason behind this inaction is lack of knowledge on how to trigger the advisory jurisdiction or just a way to avoid awakening the debate on the advisory jurisdiction triggered in 2015. Drawing on the lex lata governing the advisory jurisdiction of the ITLOS plenary, this chapter examined the opportunities offered by this judicial function, as well as the limits that the ITLOS should set.

As a first remark, the advisory function stands as a valuable tool to enhance the UNCLOS system and foster strengthened global governance in the ocean. In other jurisdictions, advisory opinions are demonstrable guidance in the interpretation and application of law. Yet, it should be clear that advisory opinions will not by themselves resolve an issue; rather, they are a complement to a parallel effort. However, their legal effects entail opportunities for stakeholders to reach concrete solutions following the law. In this context, stakeholders should consider the opportunities and the limits of the advisory jurisdiction of the ITLOS to seek legal guidance on how to tackle current challenges in the law of the sea.

Considering the guidance provided by the ITLOS in the SRFC Advisory Opinion on the requirements for triggering the advisory jurisdiction, this research underscores the role of an international agreement as the cornerstone of the advisory function. In this regard, this chapter proposes that the terminology ‘international agreement’ should mean that this jurisdiction emanates from multilateral, regional, bilateral and substantive treaties. Yet the terminology likewise enables the use of ad hoc jurisdictional agreements to request an advisory opinion. As established, a group of States and international organizations can conclude an ad hoc jurisdictional agreement to request an advisory opinion. However, this agreement should comply with the minimum requirements under Article 21 of the Statute and Article 138 of the Rules. These minimum requirements could function as a standard to provide legitimacy to the ITLOS. Nevertheless, the use of ad hoc jurisdictional agreements requires meticulous consideration by the ITLOS to avoid potential abuses. In this vein, the discretionary powers of the ITLOS stand as the main mechanism of control that the Tribunal should employ to prevent abuses when using the advisory jurisdiction. The ITLOS should determine whether there are compelling reasons that will menace judicial propriety. Among these compelling reasons, the Tribunal should pay special attention in protecting the principle to consent to adjudication, mainly due to the particular architecture of its advisory jurisdiction.

As mentioned, Antigua Barbuda, and Tuvalu created COSIS to inter alia trigger an advisory proceeding before the ITLOS on questions concerning climate change and the oceans. This new entity will remain open for other States to join the efforts.⁷⁰ The question is whether this agreement will fulfil the requirements imposed by Article 138 of the Rules to seise advisory jurisdiction. Drawing on the analysis of this chapter, the answer will depend on the legal question submitted to the ITLOS and the utility of an advisory opinion for the requesting states. Furthermore, COSIS will open a new chapter in the understanding and operation of the advisory jurisdiction of the ITLOS. It will be on the Tribunal and States to determine the outcome of a new request for an advisory opinion.

18 Could the WTO Save the Oceans? An Inquiry into the Role of the WTO in the Future of Fisheries Policies

Leonila Guglya

18.1 Introduction

The fisheries subsidies mandate of the World Trade Organisation (WTO) recently celebrated its twentieth birthday. Somewhat clarified and reshaped over the years, the mandate remains only partially fulfilled.¹ The 12th WTO Ministerial Conference (MC12), scheduled to take place in November–December 2021, at which the negotiations were hoped to finally be concluded, was postponed indefinitely due to a new outbreak of the COVID virus. While fish stocks are at risk of further depletion in the face of increasingly capable fleets, among other hazards, the WTO Members need to take pragmatic yet ambitious steps as a matter of urgency, in order to be able to contribute to the search for solutions.

The WTO is authorised to reduce (or even eliminate) fisheries subsidies through new rules to be integrated in its framework and enforceable via its own dispute settlement mechanism (DSM). This task is not common for a body mostly concerned with trade regulation rather than sustainability (which is treated in a somewhat restricted manner through exceptions), or, even more broadly, the law of the sea. However, if accomplished, it would contribute to current ocean governance through restricting financial inflows into enhancement of the fishing effort, which is damaging for stocks.

Meanwhile, lacking fishing management-related experience or capacity to develop it, the WTO is bound to rely on the procedures and findings of specialist fisheries management bodies as triggers for its disciplines. This requires efficient interaction with other ocean governance players not only throughout negotiations but also (or even more so) during implementation of a future agreement. Similarly, the WTO is inevitably put into the network of the core law-of-the-sea notions embodied in the United Nations Convention on the Law of the Sea (UNCLOS) and related binding and soft law instruments, as well as their implementation.

Having first addressed the impediments encountered by the WTO Negotiating Group on Rules (NGR) despite mounting pressure to deliver, which the Group faces (I), this chapter will further proceed with briefly outlining the history of fisheries subsidies negotiations at the WTO (II); present the factors attracting fisheries subsidies issues to the Organisation (III); explore the potential for integration of disciplines-to-be within the WTO framework already regulating subsidies (IV); and detail and analyse the three key disciplines under discussion, assessing the viability and enforceability of their potential contributions to the Rule of Law for the oceans (V).

18.2 The [Poorly Shaped] Pressure to Deliver: Impediments Faced by WTO NGR Negotiators

An aspiring wish list for the future WTO Fisheries Subsidies Agreement includes numerous and varied entries. In particular, the outcome is expected to (to name a few): respect the mandate(s); show due care for fish; account for developing concerns; duly interplay with the other Sustainable Development Goals (SDGs) and their targets;² integrate into both the legal framework of the WTO (its Single [Legal] Undertaking) and that of the other fora concerned with fisheries management; be [immediately] implementable; balance the three groups of sustainability concerns (i.e., environmental, social and economic); and prove the ongoing relevance of the multilateral trading system (MTS) embodied in the WTO.³ In the meantime, one other objective – attesting that SDG [early] deadlines could be respected – was missed when the negotiators were unable to reach a deal by the end of 2019.

Despite enhanced attention to future fisheries subsidies disciplines, their sense, scope and dimensions are not well known or understood outside of the WTO negotiating rooms. Even more so, WTO and fisheries experts are each often able to see only part of the picture (e.g., ‘subsidies’ and ‘fisheries’, respectively), whereas other stakeholders demand delivery ‘as is’, not paying enough attention to the manifold technicalities that have so far emerged along the way. Lack of transparency over the progress of negotiations for over a decade⁴ has contributed towards misperceptions and misunderstandings and, arguably, inhibited the establishment of working relationships between the WTO and other international organisations and arrangements operating in fisheries and/or fisheries management. These issues were partially addressed through publication of the evolving NGR chair’s draft texts in May,⁵ June⁶ and November⁷ 2021, the explanatory notes thereto⁸ and the draft text of the agreement, expected to be considered during the MC12,⁹ also accompanied by an explanatory note.¹⁰ Nonetheless, the documents evidenced the existence of numerous disagreements, reflected in square brackets and placeholders.

Interaction between the WTO and the other ‘fisheries’ players will be necessary in implementation of the new agreement. The negotiators have indeed benefited from the knowledge shared by fisheries experts invited to participate in the technical sessions of the fisheries subsidies negotiations clusters and in the side events, as well as through studies and datasets on specific topics prepared in support of the negotiations. However, this is a ‘one-way street’ since news pertaining to progress in developing WTO fisheries rules did not necessarily spread. As a result, effective contributions from many of the fisheries specialists were disabled. Worse, the risk is that the outcome might make those same specialists somewhat reluctant to participate in implementing an unknown deal, fearing that its design might have a negative impact on the other initiatives.

The same prolonged lack of transparency has also made academic inquiry into the matter more complicated. This is because most of the submissions and communications by the Members, as well as other working papers, are restricted. In addition, in the past (up until May 2021, when the first version of the new NGR chair’s consolidated text was shared beyond WTO walls), summaries or updates rarely reached the public domain. In combination, these factors were impeding holistic and objective analysis from being accomplished and/or published.

18.3 Fisheries Subsidies at the WTO: The History

The history of WTO fisheries subsidies negotiations dates back to 1995. Then, right after establishment of the Organisation, issues related to the harmful effects of these subsidies on fish stocks were raised before the WTO Committee on Trade and Environment. The Committee started by updating itself on recent developments in the area, for instance, through studying Articles 11.2 and 11.3 of the Food and Agriculture Organisation of the United Nations (FAO) Code of Responsible Fisheries, devoted to responsible trade; laws and regulations relating to the fish trade and addressing sanitary and phytosanitary (SPS) measures, technical barriers to trade (TBT) measures, tariffs and non-tariff measures, relevant technology transfer requirements, transparency and cooperation.¹¹

Inquiring into the core of the phenomenon, one of the proponents of establishing the disciplines in the area recognised: ‘Fisheries subsidies, irrespective of whether they take the form of cost reduction or price supports, encourage increased fishing effort. Thus, fisheries subsidies exacerbate the already serious common property problem of ocean fisheries … ’.¹² On the other hand, an alternative approach has also started to crystalise. This approach – supported by Japan, among others – emphasises fisheries management rather than fisheries subsidies, as a result, advocating in favour of establishing considerably more modest and selective effect-based disciplines.¹³

Numerous submissions – mostly by the Friends of Fish: Iceland, New Zealand, the United States, Australia, Chile, Peru and Norway – have addressed many of the core points, including a drastic lack of transparency over fisheries subsidies granted by WTO Members,¹⁴ posing real difficulties in terms of estimating the true impact of those subsidies. As a result, the first ever draft version of the WTO fisheries subsidies mandate, introduced during the MC3 in Seattle (yet never adopted), comprehensively captured most of the important elements of the discussions-to-be. It addressed ‘certain subsidies that may contribute to over-capacity in fisheries and over-fishing’; provided that ‘the work on fisheries subsidies shall be carried out in cooperation with the FAO and drawing also on relevant work under way within other intergovernmental bodies, including RFMOs’ and included ‘identification and examination of subsidies which contribute to over-capacity in fisheries and over-fishing’ and ‘the clarification and strengthening, as appropriate of disciplines under the Agreement on Subsidies and Countervailing Measures (SCM) with respect to such subsidies … ’.¹⁵ However, it is important to note that the mandate as drafted had an additional, purely ‘trade-related’ facet, which has gradually disappeared as the work progressed. Namely, it was also dealing with fisheries subsidies that ‘cause other adverse effects to the interests of Members’ and ‘have trade-distorting effects’.¹⁶ The only area not addressed by the Seattle fisheries draft, which has later become a central element of the mandate, was that of development.

After the failure of the Seattle Ministerial to deliver,¹⁷ unrelated to fisheries subsidies, a much more modest version of the relevant mandate was introduced in paragraph 28 of the Doha Ministerial Declaration.¹⁸ This referred to clarification and improvement of the ‘WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries’ within the framework of ‘negotiations aimed at clarifying and improving disciplines under the Agreements on Implementation of Article VI of the GATT 1994 and on Subsidies and Countervailing Measures’. This provision was supplemented by a broadly phrased undertaking to negotiate on ‘the reduction or, as appropriate, elimination of tariff and non-tariff barriers to environmental goods and services’ (non-specific to fisheries subsidies) in paragraph 31 (iii) of the same Declaration. The dual – trade and environmental – emphasis was thus, for the moment, preserved.

A largely identical mandate was restated in paragraph 28 of the 2005 Hong Kong Ministerial Declaration.¹⁹ However, in paragraph 9 of its Annex D, the same instrument, in addition, explicitly referred to ‘prohibition of certain forms of fisheries subsidies that contribute to overcapacity and over-fishing’, also containing a much more elaborate special and differential treatment (SDT) clause.

The NGR chair’s Draft 2007,²⁰ even if not having normative value, is also worth a mention, since it has influenced the future of the negotiations in at least two respects. The first is by offering a definition of fisheries subsidies, containing an explicit reference to their ‘specificity’ (by suggesting, in Article I.1, that ‘… the following subsidies within the meaning of paragraph 1 of Article 1, to the extent they are specific within the meaning of paragraph 2 of Article 1, shall be prohibited’. The second is by introducing an extra negotiation track for subsidies to fishing on overfished stocks (Article I.2: ‘In addition to the prohibitions listed in paragraph 1, any subsidy referred to in paragraphs 1 and 2 of the Article 1 [listing varied types of capacity-enhancing subsidies] the benefits of which are conferred on any fishing vessel or fishing activity affecting fish stocks that are in an unequivocally overfished condition shall be prohibited’ (emphasis added). Both these items remain on the agenda up until today.

The situation evolved in late 2015 with adoption of SDG’s, in particular, SDG 14.6, designed to ‘by 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU fishing, and refrain from introducing new such subsidies … ’. The prohibitory language of SDG 14.6 was picked up by the Ministerial statement of the 10th WTO Ministerial Conference (MC10), supported by some twenty-six WTO Members²¹ and, later, the Ministerial Decision on Fisheries Subsidies²² of the 11th WTO Ministerial Conference (MC11) in which, expanding the prior mandate, the Members agreed ‘to continue to engage constructively in the fisheries subsidies negotiations building up on the progress already made … , with a view to adopting, by the Ministerial Conference in 2019, an agreement on comprehensive and effective disciplines that prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU-fishing … ’. This way, the mandate was supplemented by reference to Illegal, Unreported and Unregulated (IUU) fishing, and now contains two de-jure and three de-facto substantive elements.

In addition to these elements, the exact language of the mandate clearly evidences its evolution, starting from ‘clarification’ and reaching achieving agreement on new ‘comprehensive and effective disciplines’.

18.4 Factors Attracting the Issue to the WTO Agenda

The initial reason for introducing fisheries subsidies on to the WTO agenda seems to be clear. That is: the [once] strong dispute settlement that could extend to ensuring compliance with these trade-related obligations,²³ albeit mostly grounded in environmental sustainability. Redress for violating the fisheries governance rules is underexplored elsewhere, especially as far as the domain of capacity-enhancing subsidies is concerned, the one originally submitted for creation of the WTO rules-to-be. In this area, fisheries management plans, quasi-voluntary in nature, currently predominate. This leaves States questioning their neighbours’ conservation efficiency to resort either to a) reinforcing it through technical assistance and enhancing cooperation within the framework of free trade agreements (FTAs) or fishing access agreements (FAAs), or b) adopting unilateral trade-restrictive measures, some of which were even contested before the General Agreement on Tariffs and Trade (the GATT) and WTO panels,²⁴ also featuring parallel counter-proceedings elsewhere.²⁵ In this light, the desire to legitimise at least some conservation measures within the global trade order looks justified, at least beyond the capriciousness of the GATT Article XX(g) exception. The situation with the IUU disciplines, joined to the WTO fisheries subsidies mandate, appears to be similar. However, arguably, these are already subject to harsher enforcement mechanisms. Despite the recent entry into force of the UN Port State Measures Agreement (PSMA),²⁶ as of now, such arrangements are predominantly of a unilateral nature.

Other factors of attraction – though arguably of comparatively less significance – include, for example, the nature of the measure, bearing in mind that the GATT, followed by the WTO, has significant experience in putting together, implementing and enforcing varied subsidies rules, proving that the subject matter of the new deal – fisheries/fish – is not foreign to the WTO, having been subject to market access measures, including tariffs and non-tariff measures (NTMs), such as SPS, TBT, transit and export/import restrictions. It might be also argued that the rules on fisheries subsidies could potentially benefit from peer pressure enhancing compliance, ensured by the institutional structure of the WTO. Finally, after the change of circumstances these days, in particular, the demise of the WTO Appellate Body (AB) and the resulting crisis of the WTO dispute settlement mechanism as a whole, the mandate remains on the agenda thanks to the pacta sunt servanda principle, supported by the efforts made in clarifying it earlier.

18.5 Squaring the New Subsidies with WTO Subsidies Disciplines

If adopted, the Agreement on Fisheries Subsidies would become the fourth covered agreement addressing subsidy matters at the WTO, after the GATT, the Agreement on Agriculture (AoA) and the Agreement on Subsidies and Countervailing Measures (SCM). It should be noted that the principle of effectiveness requires that the ‘provisions [of the WTO agreements] are read in a coherent and consistent manner which gives full and effective meaning to all of their terms’.²⁷ Remarkably, while both the SCM and the AoA have adopted different regulatory approaches and structural solutions, they seem to overlap in attributing different weight to different types of subsidies, the SCM – through the ‘traffic light’ approach, while the AoA – via its boxes. This results in stricter treatment of the most trade-distorting measures. In the SCM, more restraining treatment is, for instance, reserved for the case of export subsidies, which, together with import substitution subsidies, forms the ‘prohibited subsidies’ category. While the SCM prohibited such subsidies from the start by virtue of its Article 3(1)(a), the AoA in its Part V (Articles 8-11) first subjected them to detailed regulation. This, however, was also later followed by the prohibition introduced through the Ministerial Decision on Export competition in the Bali Ministerial package,²⁸ which is now subject to gradual implementation. The typologies are closely linked to the issue of enforceability, with the more stringent disciplines being subject to better streamlined procedures.

Even should the Fisheries Subsidies Agreement be integrated into the SCM, its distinctive character and pursuit of non-trade objectives would certainly make it stand out as a lex specialis with respect to the other, general, subsidies rules incorporated therein. Fisheries (like other) subsidies are already covered by the SCM disciplines as far as their trade-related effects are concerned. Most of these subsidies are actionable, which means that a Member contesting a measure should be able, as per Part III of the SCM, to show (and quantify) adverse trade effects. As was suggested by Australia, Chile, Ecuador, Iceland, New Zealand, Peru, Philippines and the United States during early elaboration of the Doha Mandate,

subsidised production reduces the access of existing and potential participants to fisheries, as well as to markets. Subsidies that limit others’ access to stocks are trade-distorting, because in altering production patterns they necessarily alter trade patterns. … The effects of such subsidies might be to keep unsubsidised catches at low levels where they would otherwise have increased. … If subsidised fishers deplete a shared stock, all other fishers lose access to that stock, not merely those competing alongside the subsidised product at market.²⁹

The same submission further noted that the distortions caused by the fisheries subsidies might be difficult to address under the SCM Agreement, operating the notions of price cuts and import impediments or displacements.³⁰ The proponents also pointed out that the task of identifying market distortions by fisheries subsidies is made more difficult by the diversity in nature of fisheries products and of the economic structures used by the industrial segment concerned.³¹

This might suggest the reasons why no cases challenging fisheries subsidies provided by a Member were ever raised before the WTO panels and the AB. The same structure proves highly impracticable if ‘trade’ effects are replaced by ‘environmental’ concerns. Nor would it meet the mandate, unambitiously calling for no less than ‘prohibition’. The fisheries subsidies rules, which are being elaborated, are not directly aimed at disciplining trade restrictive measures otherwise resorted to by the Members in the fisheries sector, such as import, export and transit restrictions. Those would likely continue their parallel existence, even though, indeed, they might be impacted by synergies created by better fisheries management practices, the introduction of which might be catalysed by the Fisheries Subsidies Agreement, or even a run-up thereto, and, where applicable, the other WTO rules disciplining trade restrictions. What is suggested is an alternative avenue. Lastly, the fisheries subsidies disciplines might be relevant in interpreting the text of GATT Article XX(g) as applied to other trade restrictive measures taken to meet conservation ends.

18.6 What the Negotiations Are Really About: The Three Elements of a Future Deal

Even if it might be argued that at the core of the ongoing negotiations are disciplines tackling overcapacity and overfishing, two other additional issues are on the table. One of those – subsidies to fishing overfished stocks – was added de facto, not de jure. These three substantive areas will be assessed next.

18.6.1 Capacity-Enhancing Subsidies (e.g., Contributing to Overcapacity and Overfishing)

Input of overcapacity into overfishing is clear (see Chart 18.1) and widely recognised. Moreover, as the term ‘contributing’ itself suggests, even if this is not the only cause of overfishing, it remains an important one. In addition, overcapacity is the area offering most comfort to the WTO negotiators, since it largely relies on economic terms and indicators, to which they are accustomed. The impact of capacity-enhancing subsidies on the conditions of fish stocks is demonstrated on the adjusted version of the Kobe (or the phase) plot. This constituted part of the Report of the first joint meeting of the tuna RFMOs, which is used to evaluate the status of a stock based on fishing mortality (F) and biomass (B) associated with maximum sustainable yield (MSY; FMSY and BMSY).

Chart 18.1. Impact of capacity-enhancing subsidies on fish stocks (on adjusted Kobe Plot)

Subsidies increasing capacity – even more so when coupled with poor or inexistent fisheries management practices – appear also to contribute to IUU. Thus, overcapacity disciplines could, in addition, curtail IUU fishing, which, as noted by Lee, is a by-product rather than a subject of subsidisation.³² Tackling a broader perspective, prohibition of certain overcapacity subsidies would make an important contribution to fisheries governance overall, since this particular issue is not pre-empted by the existing framework. That is especially so with respect to fishing on the high seas – outside the areas/ species covered by the RFMO/As, or even within them – since the measures taken by different organisations and arrangements are not identical in their efficiency. Finally, considering the migrating, straddling and shared nature of many fish stocks, which make management efforts particularly difficult, blocking enhancement of fisheries effort could be a viable addition or alternative.

Even though the WTO Members seem to agree that subsidies contributing to overcapacity and overfishing have to be curtailed, reaching consensus over the way in which this result could be achieved has proven to be a difficult task. The three main approaches suggested and debated are as follows. First, the positive list approach, according to which most harmful types of capacity-enhancing fisheries subsidies would be identified and so listed and prohibited. Second, the negative effect test, according to which only capacity-enhancing subsidies negatively impacting stocks would face prohibition. And third, the approach establishing (scheduling) subsidy caps, specific to particular Members or their groups, which would limit the total allowable amount of subsidies provided, and might be subject to further reductions. These approaches were considered alone and in combination.

While the list and the caps approaches require consensus upfront – in establishing the lists and quantifying the caps respectively – the negative effect test postpones determination of what is prohibited to the future – as a matter of a highly problematic step in light of the ongoing WTO DSM impasse, the overall complexity of the WTO DSM and particular challenges fisheries subsidies might contribute thereto.

The blended approach, embodied in the latest Chair’s draft, relies on the stabilised demonstrative list of prohibited subsidies (subsidies for fixed and operational costs, including fuel), followed by effect-based flexibility and exceptions incorporating certain elements used in elaborating the capping proposals. The design of these provisions implies that the setting of action is the territorial sea, EEZ or RFMO/A area. Special provisions prohibit subsidies contingent on fishing on the high seas in whole or in part, as well as subsidies to vessels flying a flag of a different Member. The flexibility tolerates capacity-enhancing subsidisation ‘if the subsidising Member demonstrates that measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level’. Meanwhile, the exceptions reflected (save for the one devoted to disaster relief and available to all Members) are targeting low income, resource-poor or livelihood fishing, or fishing-related activities of the developing Members and LDCs in their territorial seas or EEZs. These exceptions are not only time-limited but are also subject to exemptions from eligibility, referring to the Member’s share of the annual global marine capture fish production and, potentially, other indicators.

18.6.2 Subsidies to Fishing on Overfished Stocks

A separate stream of disciplines related to prohibition of subsidies to fishing on overfished stocks, not explicitly forming a part of the mandate, were first introduced by the chair’s Draft in late 2007. These are the disciplines that have faced the most impressive dynamics, having moved from the non-existent and, next, redundant, to the core and most stringent disciplines among the proposed prohibitions.

The idea behind subsidies to fishing on overfished stocks is plausibly based on ‘not going from bad to worse’, that is, not depleting already ‘suffering’ stocks still further. Nevertheless, the drafting solutions suggested by the Members in this respect initially tended to tweak the main aim of these disciplines by, rather, using the latter as a shield safeguarding their right to continue to subsidise fishing on overfished stocks, subject to the set conditions, for instance – a post-factum negative effect test. Unsurprisingly, this solution appeared somewhat far-fetched. The chair’s Draft contains a clear prohibition on subsidising fishing on overfished stocks, subject to flexibility allowing stock-rebuilding subsidies only, conditional on compliance with [enhanced] transparency requirements. In a sense, flexibility is structured so that it is more likely to be invoked in practice by developed countries. The disciplines are also subject to highly restrictively phrased time-limited exceptions for low-income, resource-poor or livelihood fishing or fishing-related activities in the territorial seas by developing Members and LDCs. Technically, the overfished stocks disciplines feature a very high level of reliance on stock assessment and management domains, which might seriously hamper their already limited efficiency.

Finally, after years of heated debates, Members appear to have decided not to retain the presumption of overfishing with respect to unassessed stocks. Thus, the overfishing disciplines would not apply to those stocks. While the final provisions in the draft encourage Members to exercise due restraint with respect to subsidisation of such stocks, this solution is rather weak and might disincentivise stock assessment.

18.6.3 Subsidies to IUU Fishing

The late-comer to the WTO fisheries subsidies mandate – ‘elimination of subsidies to Illegal, Unreported and Unregulated (IUU) fishing’ as well as fishing-related activities in support of such fishing – has an accessory flavour. The framework developed at the WTO so far, even if having accumulated a high degree of consensus, remains weak and heavily dependent on external IUU determinations by coastal States (including port States), flag States and RFMO/As. Obligations are limited to adopting, implementing and notifying to the WTO the national laws prohibiting the grant of subsidies to vessels and/or operators determined to be engaged in IUU fishing. The IUU determination triggering the prohibition is subject to positive evidence and should be conducted in line with due process standards. The expected impact of the disciplines is not fully clear and, in any case, appears to be quite modest due to the prospective injunctive (as opposed to retrospective compensatory) nature of WTO remedies. However, despite its practical insignificance, elimination of IUU subsidies discipline could conceivably be useful in supporting relevant measures taken elsewhere.³³

18.6.4 The Effective Way Forward

While the framework of the new agreement appears to be largely in place, the Members are working on aligning their positions on several outstanding details. Key among those are the scope of flexibilities and exceptions (namely those reflecting the ‘appropriate and effective’ SDT), as well as institutional matters, in particular, the extent of the transparency obligation and adjustments to the WTO DSM to duly accommodate fisheries subsidies disputes. The short transitional periods, now proposed for the prohibition of subsidies to fishing on overfished stocks disciplines, seem to be based on a presumption of quick recovery of unsustainable stocks, which might be over-optimistic. Instead, a closer look might be taken at the gradual diversification in the occupational focus of the coastal communities engaged in livelihood fishing, especially in developing countries and LDCs, to allow their members to decrease their dependence on catches, even if temporarily. This might require not only additional time but also a creative strategy joined by suitable technical assistance.

In line with the considerations presented earlier in this chapter, the text, as it stands, has largely omitted stock management tasks, albeit reliance on their results as a trigger inevitably remains. This, once again, suggests that implementation of the WTO Fisheries Subsidies Agreement, when adopted, would necessitate cooperation between the WTO and the national fishing management authorities, RFMOs and RFMAs, as well as the FAO. Moreover, coordination with the work being accomplished by the UN (UNECE and UNCTAD), the OECD and the World Bank would also be useful. A key feature of this process would be to understand variable areas of competence and divide tasks, without undue usurpation of those by the ‘new’ player (WTO). If duly implemented, this approach would shape positive synergies.

18.7 Concluding Remarks

The contours of the potential contribution by the WTO to the Rule of Law for the Oceans are largely defined by now. It will include rules contributing to minimising financial inflows supporting enhancement of the fishing effort and so damaging stocks. These rules would be divided into three streams, shaped as prohibitions of: a) subsidies contributing to overcapacity and overfishing; b) subsidies for fishing on overfished stocks; and c) subsidies to vessels and/or operators involved in IUU fishing. Reflecting the accessory role of the WTO in ocean governance and once again emphasising that the WTO does not exist in a clinical isolation, the new disciplines are built around law of the sea notions and are relying on the efforts taken and findings made by fisheries management organisations and arrangements as triggers.

While the oceans are well-inscribed into the environmental sustainability pillar of a future agreement, which appears to feature a higher degree of convergence, the other two – social and economic sustainability – elements, are still subject to heated discussion. Indeed, a reduction in the usual state support might have a considerable impact on fishers and their communities, especially in the short term. On the other hand, the impossibility of investing in fleets could interfere with the industrialisation strategies of developing countries and LDCs, most of which, nowadays, are responsible for only an insignificant share of subsidisation due to their restricted relevant budgets. Mutually acceptable solutions to these issues are hoped to be found by the MC12, now postponed to March 2022 at the earliest due to the COVID pandemic.

The WTO fisheries subsidies negotiations are a marathon rather that a sprint. Another lap or several might be required to make sure that the agreement is ripe for delivery and subsequent implementation. On this track, every step forward is of importance to both the WTO and the oceans. A win-win outcome might well be achievable: through establishing the new, sustainability-driven subsidies rules, the WTO could help the oceans to recover, while the progress and the eventual successful conclusion of the fisheries subsidies negotiations could affirm that the WTO remains relevant and could meaningfully deliver on trade-related issues of global concern.

19 Improving Compliance with International Fisheries Law through Litigation

Solène Guggisberg

19.1 Introduction

As recognized by the UN General Assembly, the rule of law requires that States ‘abide by all their obligations under international law’.¹ Against this standard, the traditional regime regulating international fisheries appears inadequate, since many States are unwilling or unable to respect their relevant obligations. This issue is enabled or compounded, at the global level, by the absence of a well-established, inter-governmental compliance mechanism to hold them accountable.² Such a mechanism would be tasked, first, to verify, independently, whether States are respecting their obligations and then, if needed, to take measures to trigger modification of behaviour.

This chapter examines the potential of using litigation to increase compliance with existing norms in the field of fisheries. International courts and tribunals are indeed important contributors to the rule of law,³ be it by solving the specific dispute in front of them⁴ or clarifying the law.⁵ Existing research has examined case-law relevant to fisheries or the marine environment more generally,⁶ and has analysed the potential of litigation for environmental purposes.⁷ The present chapter aims to add to this body of literature by analysing the potential of and obstacles to using litigation in three specific fisheries-focused scenarios: litigation against a flag State, against a coastal State and against a fishing State.

The adjudicative bodies examined in the present chapter focus on public international law, leaving aside trade law as a more discrete field. In addition to references to contentious cases in front of the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and arbitral tribunals, the chapter considers advisory opinions and conciliation commissions. Litigation is hence understood in an expansive fashion.

It is worth noting at the outset that the main framework for the law of the sea, the United Nations Convention on the Law of the Sea (UNCLOS), establishes a robust and compulsory system for the settlement of disputes. Part XV of that nearly global treaty contains dispute settlement procedures applicable to all parties to the treaty since reservations are not allowed under the Convention, unless provided otherwise in specific provisions. Disputes regarding interpretation or application of the Convention can, if certain conditions are fulfilled, be submitted unilaterally to third-party dispute settlement.

19.2 Litigation against a Flag State

A first possibility to improve compliance with existing obligations would be to focus litigation strategy on flag States, which are central players in maritime activities, including fisheries.

The obligations of the flag State are, inter alia, to control vessels flying its flag, both on the high seas and in the Exclusive Economic Zone (EEZ) EEZs of third States, and to ensure that they respect applicable conservation and management measures (CMMs). The obligation is provided for in Article 94 of UNCLOS⁸ and further elaborated, in relation to the fisheries sector, in other treaties.⁹ This obligation of due diligence does not imply that a flag State will be held responsible for each violation of applicable rules by one of its vessels, but that it must ‘take all necessary measures to ensure compliance and to prevent IUU [illegal, unreported and unregulated] fishing by fishing vessels flying its flag’.¹⁰

While this is an obligation of conduct rather than result, it should not be underestimated; the order of the oceans, in particular on the high seas, is based on assigning jurisdiction to the flag State. Unfortunately, the issue of flags of non-compliance is widespread in the fisheries field.¹¹ In that light, the potential impact of addressing this issue would be considerable. The law of the sea is not so much a legal regime with major gaps as a legal regime insufficiently implemented and enforced.

19.2.1 Standing

A potential challenge with this strategy would be in determining the entity competent to bring a case to a court or a tribunal. In contentious cases, only those States whose legal interests are infringed have standing to initiate proceedings in front of international courts.¹² It is indeed generally accepted that a State ‘should be able to establish a legal interest in respect of the claim brought before an international tribunal’¹³ and that ‘a mere interest’ is insufficient.¹⁴ Traditionally, States with standing are defending their rights or legal interests, not those of the international community generally.¹⁵

A category of States with clear standing are injured States, as defined in Article 42 of the International Law Commission (ILC) Articles on the Responsibility of States.¹⁶ However, as the relevant obligations of flag States are not owed to any particular State, a State wanting to invoke a flag State’s responsibility would have to be ‘specially affected’ or the situation would have to be such that ‘each party’s performance is effectively conditioned upon and requires the performance of each of the others’.¹⁷ The former case could be that of a coastal State if a flag State did not control its vessels fishing in the coastal State’s EEZ. The latter could, arguably, be invoked more generally by one State against another State whose conduct enables free-riding by vessels flying its flag, leading to the total fishing pressure on a stock exceeding sustainable levels.

A second category of States with potential standing are those that are not injured by the actions they may want to combat in court. That would be, for example, a State deciding to bring a well-known flag of non-compliance to court, in a situation where the applicant’s interest is to fight impunity rather than to see a specific violation against its own interests remedied. De lege lata, the existence of a general right for a State to act for protection of the international community’s rights and on its behalf, in what is called an actio popularis, is still controversial and unsettled even in relation to obligations owed to the international community.¹⁸

In terms of obligations relying on multilateral treaties, that is, obligations erga omnes partes, standing might actually not be an issue. Some compromissory clauses provide a basis for standing without the need to show any special interest.¹⁹ Hence, States wishing to react to a breach of these conventional frameworks do not have to demonstrate an injury.²⁰ Article 286 of UNCLOS is one such clause that does not require the applicant to have directly or particularly suffered an injury. It provides that ‘any dispute concerning the interpretation or application of this Convention shall … be submitted at the request of any party to the dispute’.

Even for cases started on other jurisdictional bases, there are general signs that an international court or tribunal may be willing to hear a case related to obligations erga omnes partes. In particular, in the Whaling case, the applicant State, Australia, was not directly injured by the actions of Japan. Both States were parties to the International Convention for the Regulation of Whaling, the provisions of which Australia claimed that Japan had breached. The basis of jurisdiction relied on by the Applicant was unilateral declarations under Article 36(2) of the ICJ Statute. Japan did not raise an objection regarding Australia’s standing to bring the case to the ICJ, which in turn did not consider the question.²¹ When addressing matters of jurisdiction and admissibility, the ICJ must examine any potential issue proprio motu and its silence on the question of a non-injured State’s standing seems to imply that it did not see this as an impediment to hearing the case on the merits.

As for obligations erga omnes, that is, not treaty-reliant but rather of a customary international law nature, the situation may be more precarious. On the one hand, the ILC acknowledged, in its Articles on the Responsibility of States, that a non-injured State can invoke a wrongdoing State’s responsibility in order to protect collective interests, hence pointing to the possibility for such an actio popularis.²² On the other hand, the consequences of a non-injured State’s ability to invoke responsibility were acknowledged in the Commentary to be a progressive development of international law,²³ and the relevant provision more generally was controversial during the drafting process.²⁴ Hence, courts and tribunals might be reluctant to allow a case started by a non-injured State to proceed if the obligations binding the parties are not treaty-based. The practical impacts of this probable absence of standing are likely limited since UNCLOS is a nearly global treaty. Nonetheless, some noteworthy non-parties remain, such as the United States, which are not bound by Part XV.

19.2.2 Jurisdiction

After settling the question of standing, a court or tribunal would examine the question of jurisdiction. An issue may arise, in relation to cases started under the compulsory dispute settlement mechanism set up under UNCLOS, if both applicant and respondent are also parties to the same regional fisheries management organization (RFMO). These are the main bodies entrusted with conservation and management of straddling and highly migratory species. Article 281 of the Convention gives precedence to other dispute settlement mechanisms, if so agreed by the parties.²⁵

Most RFMOs have agreed to some sort of dispute settlement in their founding treaties. Hence, depending on the interpretation given to the terms of Article 281(1), an applicant might be precluded from accessing compulsory dispute settlement procedures under UNCLOS and instead be limited to potentially non-binding procedures. The arbitral tribunal in the Southern Bluefin Tuna cases brought by Australia and New Zealand against Japan found that the procedure established under the convention establishing the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) precluded recourse to compulsory jurisdiction provided by UNCLOS. While the relevant provision of that treaty²⁶ does not explicitly prohibit referral of a dispute to ITLOS, the ICJ or an arbitral tribunal under Part XV of UNCLOS, the Arbitral Tribunal found that it did not have jurisdiction because the agreement between the Parties excluded any further procedure.²⁷

This decision has been widely criticized.²⁸ Instead of a binding compulsory mechanism under UNCLOS, a legally weaker mechanism took priority. If this decision were to serve as a precedent, it would exclude a number of treaties that could otherwise fall ratione materiae under UNCLOS dispute settlement procedures but have a clause related to some dispute settlement mechanism – usually a weak one – of their own.²⁹ Indeed, the convention establishing the CCSBT is not the only RFMO treaty with such a provision: at least three others include similarly worded articles in their founding treaties.³⁰

However, the questionable reasoning found in the Southern Bluefin Tuna cases has been reversed in the more recent South China Sea case. In the decision on jurisdiction and admissibility, the Arbitral Tribunal examined Article 281 and found that, for the dispute settlement mechanisms established under UNCLOS not to be applicable pursuant to that provision, an express exclusion was required.³¹ Under this interpretation of Article 281, most RFMO founding documents could not be used to preclude a dispute about UNCLOS provisions from being examined by an international court or tribunal. The line of argumentation in the recent award is certainly more convincing, but it will remain to be seen whether future courts and tribunals decide to widely follow it, in particular in light of the political considerations surrounding the South China Sea case.³² The decision on competence in the Timor Sea conciliation is, in that sense, encouraging.³³ In any event, since the potential issue of jurisdiction is related to Article 281 of UNCLOS, cases started under other bases of jurisdiction would not be at risk.

19.3 Litigation against a Coastal State

A second possibility to improve compliance with existing obligations would be to focus litigation strategy on coastal States, whose waters are the most productive in the oceans, and where most fishing occurs.³⁴

Coastal States must ensure that the resources under their jurisdiction are not over-exploited.³⁵ To do so, they must set a total allowable catch, taking into account the best scientific evidence and adopting measures to maintain or restore stocks to a level where they can produce maximum sustainable yield.³⁶ Failings by the coastal State may be due to unwillingness and/or inability, as managing vast expenses of waters is a costly endeavour. Since a large proportion of stocks are overfished,³⁷ it seems clear that the obligation to avoid overexploitation is not properly respected.

19.3.1 Scope of Jurisdiction

A major problem with the strategy of bringing a coastal State to court is to be found in the limitations to UNCLOS’ compulsory jurisdiction. Issues related to a coastal State’s sovereign rights ‘with respect to the living resources in the exclusive economic zone or their exercise, including its discretionary powers for determining the allowable catch … and the terms and conditions established in its conservation and management laws and regulations’ are indeed listed in the automatic exceptions to the compulsory dispute settlement principle found in UNCLOS.³⁸

In certain cases concerning fisheries, conciliation is possible under Annex V section (2) of UNCLOS. This procedure is open in specific situations when a coastal State ‘manifestly failed’ its conservation obligations and marine living resources in its EEZ are ‘seriously endangered’.³⁹ This mechanism is clearly intended only for extreme situations.⁴⁰ Moreover, the coastal States’ discretion is not to be put into question.⁴¹ In any case, the results of a conciliation procedure are non-binding.⁴²

Notwithstanding these limitations, Annex V conciliations remain an open avenue, and a precedent now exists for the establishment of a conciliation commission: the Timor Sea conciliation. While this concerned issues of maritime delimitations and oil and gas exploitation, rather than fisheries, it is nevertheless an interesting precedent. In particular, Australia objected to the competence of the conciliation commission,⁴³ an issue that may arise in the present scenario, due to the qualified wording of Article 297(3)(b) and the potential existence of other treaties between the parties. That the commission proceeded to hold hearings on the matter and issued a decision asserting jurisdiction⁴⁴ – which Australia did respect – is proof that this procedure is able to deal with complex issues. The format followed in that conciliation, where Australia and Timor-Leste were negotiating to find a mutually acceptable solution, requires the constructive involvement of both parties. It may consequently not be a viable way forward in the case of tense and confrontational relations. Nonetheless, one could envisage a conciliation of a different type, with a decision issued by the commission, similar to an arbitration but of a non-binding nature.

In light of the potential challenges to starting litigation-like proceedings vis-à-vis a coastal State under UNCLOS, it may be worth considering having recourse to other bases of jurisdiction, such as unilateral declarations recognizing the competence of the ICJ, if available. In such cases, UNCLOS would still be the applicable law, but not the source of jurisdiction. The limits to the competence of the ICJ would consequently only be those included in the States’ declarations.

19.3.2 Remedies

Even in the case of contentious litigation against a coastal State, questions related to the availability of remedies – and their adequacy – would arise. The remedies envisioned under the ILC Articles on the Responsibility of States are, inter alia, cessation and reparation. Remedies can be available for environmental damage, as illustrated by a case between Costa Rica and Nicaragua in front of the ICJ.⁴⁵ In a separate phase of this case addressing environmental damage in a disputed area between the two countries, the Court indeed awarded compensation to be paid to Costa Rica for the impairment or loss of environmental goods and services and for restoration costs.⁴⁶

Cessation would be the first remedy – and the only one available if there is no injured State,⁴⁷ a situation quite likely in fisheries disputes. This might not actually solve the problem, especially if the violation has been ongoing for a long period of time and stocks are in need of support to re-establish themselves. Cessation could nonetheless include remedial measures if the violation of a positive obligation such as that ‘to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield’⁴⁸ were to be found by a court or tribunal.

Reparations are due for injury caused, which ‘includes any damage, whether material or moral, caused by the internationally wrongful act’.⁴⁹ They may, however, not be fully adequate, even if a State could show that it was victim of an injury. Restitution, which is the preferred form of reparation, requires knowing how the situation actually was before the wrongful act took place, in order to re-establish that situation – such information might not be available if a coastal State has not managed the stocks under its jurisdiction at all. Restitution is also conditional on not being ‘materially impossible [nor…] involv[ing] a burden out of all proportion’.⁵⁰ Re-improving the status of stocks after unsustainable fishing does not appear an easy task and may be disproportionate to the expected benefit. A suitable alternative remedy might be compensation. In that respect, it may be possible – even easy – to quantify damage to target species, which have a market price attached to them, but it may prove more difficult for associated and dependent species, or even for the marine environment.

Finally, and in any case, one could wonder whether traditional remedies are appropriate to the actual issue of mismanagement of fisheries resources. A cause of – or at least an important factor in – such unsustainable practices is often the coastal State’s inability to manage stocks, rather than its unwillingness to do so.⁵¹ Hence, in the case of many developing States, facilitative measures will be more likely to lead to improvements than punitive measures.

19.4 Litigation against a State Fishing Shared Stocks

A third litigation possibility to improve compliance with existing obligations would be to address the duty that States involved in fishing transboundary, straddling or highly migratory fish stocks have to cooperate in conserving these resources.

Both coastal States – when dealing with fish stocks not exclusively located in their waters – and the flag States of vessels active on the high seas are under an obligation to cooperate in the conservation of marine living resources.⁵² The obligation found in UNCLOS is further developed in the United Nations Fish Stocks Agreement (UNFSA), which provides that States shall cooperate with the relevant RFMO – or in the absence of one establish one – before they are allowed to fish straddling and highly migratory fish species in the high seas.⁵³ In practice, RFMOs adopt CMMs, which member States and cooperating parties are supposed to comply with – except if they have opted out, although this option only applies to parties.

This double obligation of cooperation and conservation stemming from UNCLOS is particularly crucial in areas beyond national jurisdiction, as, in its absence, the regime is one of free-for-all, leading to a potential tragedy of the commons.⁵⁴ The worrisome state of fish stocks, in particular in the high seas, speaks volumes as to the existence of problems in the regional management of these marine resources.

19.4.1 Content of Relevant Obligation

Litigation might be used to tackle individual States’ breaches of their obligation to cooperate in the conservation of fish stocks. A clear target would be a flag State that allows or enables its vessels to fish in the area under the mandate of an RFMO without cooperating with this regional organization. The flag State would need to actively permit such fishing or at the very least show a pattern of not responding to the RFMO’s communications regarding the vessel. The mere fact that a vessel flying a non-member State flag is fishing within the area of an RFMO would indeed not necessarily entail the international responsibility of the flag State, as the actions of a vessel are not, as such, attributable to the flag State.⁵⁵

The main issue in such a litigation strategy would be whether this behaviour is actually illicit. The content of the obligation to cooperate in the conservation of shared marine living resources is indeed somewhat lacking in clarity. Whereas UNCLOS Articles 118–119 are recognized as customary international law and hence binding on all States, the same cannot be said with certainty about the relevant provisions of the UNFSA.⁵⁶ Indeed, on the one hand, Article 8 of that latter treaty may be seen as customary international law in its own right, or as implementing UNCLOS provisions and hence being applicable through it. On the other hand, it can also be considered as further development of international law, since it effectively intends to put an end to the high sea’s freedom of fishing. If the potential respondent is not a party to the UNFSA, in the absence of an authoritative decision with regard to the status of that rule, a State may be wary of starting proceedings with no certainty of outcome.

Another situation that might breach a single State’s obligation to cooperate is that of an RFMO member violating CMMs or repeatedly opting out of those that have been adopted. While starting proceedings against a party to an RFMO for acting in breach of relevant CMMs could successfully contribute to the rule of law, doing so for opting out of CMMs might be more complicated. On the one hand, by repeatedly objecting to measures, a State could arguably be said to be an internal free-rider, endangering the mandate and functioning of the RFMO. On the other hand, it may be difficult to prove that such behaviour amounts to illicit non-cooperation, especially when opting out is formally allowed and reasons for doing so may be varied.

A solution to these issues of legal uncertainty could be to encourage an RFMO to request an advisory opinion respectively on the legal status of non-cooperating, non-contracting parties that are fishing in the areas under its mandate and on the relationship between cooperation and repeated objections. Provision of an advisory opinion is not per se a legal novelty, but until ITLOS declared that it was competent in relation to the Sub-Regional Fisheries Commission’s request for an advisory opinion in 2013, the bodies allowed to make such a demand were limited.⁵⁷ It was originally unclear whether ITLOS was empowered to issue advisory opinions of a general nature (in opposition to those related to the deep seabed),⁵⁸ but ITLOS found an implied power to give such an advisory opinion. This opened the door to other occurrences where an international organization is entrusted with the mandate to request authoritative interpretations from ITLOS. In practice, before requesting an advisory opinion, an RFMO may have to amend its founding treaty, in order to prove that it has clear competence to do so.

19.4.2 Bilateral Proceedings v. Complex Multilateral Reality

An applicant State could also start proceedings against several RFMO members for their joint failure to cooperate in conservation of fish stocks, demonstrated by the adoption of unsustainable CMMs. Only cases where CMMs egregiously depart from scientific advice might be considered. Indeed, Article 119 of UNCLOS acknowledges that the maximum sustainable yield can be ‘qualified by relevant environmental and economic factors, including the special requirements of developing States … ’, giving States much leeway in adopting CMMs.

Even in a case of States manifestly disregarding conservation, litigation might be unsuccessful, in light of the procedural rules of courts and tribunals as these presently stand. There are no avenues under traditional international law to bring to court a group of States for their joint behaviour. Such limitation would be at odds with the multilateral nature of the issue, that is, of several States, through their negotiating processes, having failed to deliver on their obligations. Indeed, the applicant would need to start proceedings against several States, separately – while proving that, jointly, these States failed to cooperate. If past cases are to go by, the unsuccessful attempt by the Marshall Islands to litigate against nuclear-weapon States for their failure to negotiate denuclearisation⁵⁹ shows that international courts and tribunals are not well equipped for such cases. While the ICJ reached a decision on its lack of competence on the absence of a dispute at the critical date,⁶⁰ many other grounds brought up in the objections of the Respondents, such as the absence of indispensable third parties, could also, arguably, have led to the same decision.⁶¹ Similar arguments are bound to be raised if several members of an RFMO are targeted by a case for their joint management decisions.

This issue is related to the questioned adequacy of a judicial dispute settlement mechanism for public interest matters.⁶² Dispute settlement in front of international courts is indeed typically aiming at solving bilateral disputes, while questions related to fisheries – the same as most global environmental issues – might rather need to be considered multilaterally.⁶³

19.5 Conclusion

In light of the long-standing issue of non-compliance in the fisheries field and the resulting unsustainable management of stocks, litigation is an option that should be considered by States. As examined, recent cases have clarified that many avenues are open, even if some issues, such as jurisdictional restrictions or adequacy of remedies, may remain. Having recourse to litigation in some of the situations examined in this chapter would be beneficial for the rule of law, in that it could bring an end to specific violations, hence tackling the most egregious cases of non-compliance. By doing so, it would provide a strong message against impunity, hopefully serving as a deterrent against similar behaviour by others. In particular, cases with a non-negligible impact and which are likely to succeed are those against notorious flags of non-compliance. Moreover, bringing a case to a court or a tribunal may also enable clarification of certain obligations, especially by way of advisory opinions. In that respect, one should consider a request for an advisory opinion to clarify the content of the obligation to cooperate in the conservation of shared stocks.

However, litigation has serious limitations. First and foremost, it is costly to start proceedings against another State, in both monetary and political terms. Hence, it will remain a rarity, especially if States are not reacting to direct injury but acting on behalf of the international community. Moreover, beyond the indirect deterrent effect on third States, a case will only ever solve a specific bilateral dispute, thus coming nowhere close to a comprehensive review of States’ compliance with their obligations in the fisheries field. Furthermore, litigation cannot replace well-functioning science-based management: judges are not scientists, and a case is brought ex post, instead of focusing on prevention of damage. Finally, litigation is only able to successfully address non-compliance due to lack of willingness. It is not geared towards solving the large(r) problem of lack of capacity.

Hence, while litigation may certainly have a role to play in the field of fisheries, and even if several cases were started in front of international courts and tribunals, other mechanisms should also be developed and/or strengthened. Compliance procedures under global or regional frameworks should serve for comprehensive, in-depth and regular review of States’ compliance with their obligations. As established procedures, they furthermore have the advantage of not relying on a particular State’s willingness to invest resources in litigation against another State. In comparison to the ad hoc nature of litigation, this characteristic of compliance procedures has the potential to add much-needed objectivity, impartiality and comprehensiveness to the pursuit of accountability.