Flag State Responsibility for Illegal, Unreported and Unrelated Fishing in Foreign EEZs

Abstract

One of the notable shortcomings of the present international legal regime applicable to capture fisheries is the absence of global treaty-based regulation of flag state responsibility for national fishing vessels in foreign EEZs. However, as this paper shows, there exists persuasive evidence of relevant customary international law. By drawing on states’ bilateral access to fisheries treaty practice, various relevant soft law instruments and by making analogous use of high seas fisheries and port state control agreements and the practice of RFMOs, the paper sketches a fairly detailed picture of core flag state obligations. These obligations and their breach are the principal questions of a recent request of West African origin for an advisory opinion by the International Tribunal of the Law of Sea. As the paper discusses, this request offers the prospect for an authoritative judicial opinion with implications not only for the management of West African offshore fisheries, but also for the rules of international law governing flag states and their relationship to IUU fishing in general. Moreover, considering that states have refrained from formally invoking the principle of flag state responsibility in the context of IUU fishing, the request may result in an important legal precedent that clarifies the circumstances in which a flag state will be deemed to have breached its primary obligations and thus to have incurred liability or international responsibility proper.

Keywords: IUU fishing, Bilateral access to fisheries treaties, 1995 Fish Stocks Agreement, IPOA-IUU, Flag state due diligence, RFMOs, 2009 FAO Port State Agreement, Voluntary Guidelines for Flag State Performance, FAO Code of Conduct for Responsible Fisheries, (West African) Sub-regional Fisheries Commission