On April the 2nd 2015, the International Tribunal for the Law of the Sea (ITLOS) issued an advisory opinion, following a request submitted by West Africa Sub-Regional Fisheries Commission (SRFC), on March 28, 2013.
The request for an advisory opinion is intended to support West Africa Sub Regional Fisheries Commission Member States (MS) in order for them to benefit from the effective implementation of relevant legal instruments, and to guide them in their efforts to better tackle the challenges they face regarding the fight against IUU fishing. The answers to the questions raised are expected to allow the SRFC to obtain the necessary legal elements for the success of its activities, in particular the effective implementation of the SRFC Convention on Minimal Access Conditions (MCA). Overall, the ITLOS advisory opinion mostly takes up and clarifies the existing rules of international law.
In its paper, CFFA summarises the main elements of the ITLOS Advisory opinion, and makes the following comments:
· Generally, ITLOS advisory opinion puts the emphasis on the responsibilities of the Flag States, and rather eludes the question of the primary responsibility of Coastal States for the management and conservation of resources within their EEZs, which results in rights and obligations, particularly in terms of control, monitoring and surveillance (MCS). Shortcomings in that area have been highlighted recently in the Greenpeace report, denouncing various IUU operations entered in by vessels of foreign origin (China in this case), some of them flagged in SRFC member countries –fraud about the real tonnage of vessels, trawlers fishing in artisanal fishing zone, etc
· In ITLOS advisory opinion, SRFC members are considered only as Coastal States, not as flag states. In recent years however, several cases of vessels engaged in IUU fishing, flagged in one of SRFC members, have been recorded (including the case of a Senegalese tuna vessel, of Spanish origin, arrested for illegal fishing in the Indian Ocean/Madagascar EEZ in 2008). ITLOS recommendations to flag states should therefore also apply to SRFC members.
· ITLOS advisory opinion regarding fishing agreements focusses on the case of ‘international organization that exercises its exclusive jurisdiction in respect of fisheries’. In West Africa, that restricts the analysis to the case of EU bilateral fishing agreements with countries of the region. However, ITLOS advisory opinion should also serve as a basis to engage the liability of other foreign fishing entities that negotiate fishing agreements with SRFC coastal States, including Russia, China and Korea, whose fishing activities are generally opaque and have been denounced in recent years as IUU (Russian trawlers in Senegal, etc).
· Similarly, there is a need to broaden the debate on the basis of that advisory opinion, to non-State entities, private companies, - from EU or other foreign countries origin-, which operate through private agreements, joint ventures or chartering arrangements in West African waters. There is a need to strengthen coastal States’ legislations regarding such ventures, as well as the control of the initial flag State, - which often remains the state of beneficial ownership-, on these activities to ensure more transparency and to avoid that these vessels contribute to overfishing and compete with the local small scale sector.
· Pelagic fisheries, especially small pelagics (sardinella, sardines, horse mackerel, etc) are key resources for food security and job creation in the artisanal fishing sector in the region. ITLOS Advisory opinion should serve to reinforce the political will at regional level to manage these resources in a coordinated manner, including when negotiating fishing agreements, taking into account sustainability and food security concerns.
· In its written statement provided to ITLOS in the context of the SRFC request, the EU described the EU IUU Regulation as an efficient tool to fight against IUU fishing, highlighting in particular the trade sanctions: identified non-cooperating countries receive a ‘yellow card’ warning, followed – if the country does not take appropriate measures to fight IUU fishing-, by a ‘red card’, which means fish products from that country cannot access the EU market. However, the implementation of the IUU regulation has revealed its limits when the EU recently withdraw Korea from the list of non-cooperating, ‘yellow carded’ States, under the pretext that it had undertaken legislative reforms on paper. Indications are that vessels flying Korean flag continue to engage in dubious activities off the West African coast, in particular in Guinea. Meanwhile, Guinea, member of the SRFC, was itself listed as a non-cooperating State by the EU in 2013 although it also undertook legislative reforms ‘on paper’. This situation creates a suspicion that the EU is applying double standards when implementing the IUU regulation to Korea and Guinea.