On 28 March 2013, the Sub-regional Fisheries Commission (the “SRFC“) requested the International Tribunal for the Law of the Sea (“ITLOS” or the “Tribunal“) to render an Advisory Opinion pursuant to Article 138 of the Rules of ITLOS on certain matters relating to the 1982 United Nations Convention on the Law of the Sea (“UNCLOS“). This is only the second request for an Advisory Opinion received by ITLOS to date, the first having been made by the International Seabed Authority (the “Authority“) to the Sea-Bed Disputes Chamber of ITLOS pursuant to Article 191 of UNCLOS, on 11 May 2010.
Article 191 of UNCLOS states:
“The Sea-Bed Disputes Chamber shall give advisory opinions at the request of the Assembly or the Council on legal questions arising within the scope of their activities. Such opinions shall be given as a matter of urgency.”
UNCLOS does not, however, expressly mandate the full Tribunal to give Advisory Opinions. Notwithstanding this omission, the Rules of the Tribunal (as adopted on 28 October 1997) do grant the Tribunal this advisory function. Under Article 138 of the Rules of the Tribunal:
1. The Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.
2. 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.
3. The Tribunal shall apply mutatis mutandis articles 130 to 137.”
Article 138 sets out the requirements for the exercise of the advisory jurisdiction of ITLOS. According to paragraph 1, an Advisory Opinion may be given by the Tribunal on a legal question, the formulation of which should be precise. Article 138(2) states that the body eligible to request an Advisory Opinion from the Tribunal should be authorised by, or in accordance with, an international agreement relating to the purposes of the UNCLOS. This requirement appears to be more flexible than Article 96 of the Charter of the United Nations, according to which only the General Assembly, the Security Council or other organs and specialised agencies may have the right to request an Advisory Opinion from the International Court of Justice. Article 138(3) deals with procedural issues. It states that ITLOS shall apply mutatis mutandis Articles 130-137 of its Rules. These articles refer to the procedure which must be followed in advisory opinion proceedings before the Sea-Bed Disputes Chamber.
Unlike decisions rendered by ITLOS pursuant to its contentious jurisdiction, Advisory Opinions do not have a binding character. Legally, they do not have the authority of res judicata. They are, however, a highly persuasive and authoritative statement regarding the contemporary law of the sea.
The SRFC is a body located in Dakar, Senegal and which is composed of seven member States, namely: Cape Verde; the Gambia; Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone. According to the press release published by ITLOS, the SRFC’s request is based on a resolution adopted pursuant to Article 33 of the 2012 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 (the “CMAC“). Under the CMAC, the Conference of Ministers may authorise the Permanent Secretary of the SRFC to seize the Tribunal on a specific legal matter for its Advisory Opinion.
The SRFC’s request for an Advisory Opinion contains 4 questions. These are:
1. What are the obligations of the flag State in cases where illegal, unreported and unregulated (“IUU“) fishing activities are conducted within the Exclusive Economic Zone of third party States?
2. To what extent shall the flag State be held liable for IUU fishing activities conducted by vessels sailing under its flag?
3. Where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency, shall the State or international agency be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question?
4. What are the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna?
The first question raised concerns the obligations of the flag State in cases where IUU fishing activities are conducted within the Exclusive Economic Zone of third-party States. A flag State has a quasi-exclusive competence in respect of vessels flying its flag on the High Seas. However, this is not the case in maritime zones over which the coastal State exercises sovereignty or sovereign rights.
The second question relates to the extent to which the flag State shall be held liable for IUU fishing activities conducted by vessels sailing under its flag. Article 94 of UNCLOS provides for the responsibility of a State for vessels flying its flag. This notwithstanding, UNCLOS does not specify the extent of this responsibility.
The third question concerns where a fishing license is issued to a vessel within the framework of an international agreement with the flag State or with an international agency. In considering this question, ITLOS will need to clarify to what extent, and under which circumstances, the flag State or international agency shall be held liable for the violation of the fisheries legislation of the coastal State by the vessel in question.
The fourth and final question focuses on the rights and obligations of the coastal State in ensuring the sustainable management of shared stocks and stocks of common interest. Whilst not specifying the maritime zones over which the coastal State has the above mentioned rights and obligations, the SRFC’s question concerns the powers of the coastal State in preserving fish stocks and could potentially give rise to issues in relation to the responsibility of the coastal State for failing to protect fish stocks, such as tuna.
Uniquely, this is the first occasion on which the full Tribunal of ITLOS has been requested to render an Advisory Opinion on the basis of Article 138 of the Rules of the Tribunal. Unlike the already well-established system of advisory proceedings before the Sea-Bed Disputes Chamber, that of the full Tribunal is still nascent. ITLOS will now have the opportunity to analyse Article 138 of the Rules of the Tribunal and shed light on several questions related to the interpretation of this provision.
Further, the Advisory Opinion requested by the SRFC focuses on questions relating to the positive obligations of the flag State. ITLOS is therefore expected to render an Advisory Opinion which will helpfully elucidate the above mentioned issues, which at present are insufficiently analysed in the text of UNCLOS itself.