## Facts

- The Sub-Regional Fisheries Commission (SRFC), a regional fisheries organization of seven West African coastal States, sought guidance concerning illegal, unreported, and unregulated (IUU) fishing in member States’ exclusive economic zones (EEZs).
- The SRFC relied on Article 33 of a regional fisheries access convention (MAC Convention) authorizing the SRFC to request an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS).
- The SRFC transmitted a request in March 2013; ITLOS registered it as Case No. 21 and received written statements from numerous States parties to UNCLOS and several international organizations.
- ITLOS issued its advisory opinion on April 2, 2015, addressing obligations and potential responsibility related to IUU fishing, including where fishing occurs in a third State’s EEZ and where licences are issued under international arrangements.

## Issues

1. What obligations does a flag State have when vessels flying its flag engage in IUU fishing within the EEZ of another coastal State?
2. To what extent is a flag State internationally responsible for IUU fishing conducted by vessels flying its flag?
3. When fishing licences are issued under an international agreement involving a flag State or an international organization, under what conditions, if any, can the State or organization incur responsibility for the vessel’s violations of the coastal State’s fisheries laws?
4. What are the coastal State’s rights and obligations to ensure sustainable management of shared stocks and stocks of common interest (including small pelagics and tuna)?

## Decision

- ITLOS held it had advisory jurisdiction because the tribunal’s statute and UNCLOS operate together, and the MAC Convention validly conferred advisory-opinion competence in a matter related to UNCLOS among UNCLOS parties.
- ITLOS found the request admissible because the questions were framed in general terms and did not require deciding specific disputes.
- On flag-State obligations, ITLOS held flag States must take necessary measures to ensure vessels flying their flag do not engage in IUU fishing in other States’ EEZs; these are due-diligence obligations requiring effective regulation, monitoring, control, and enforcement.
- On flag-State liability, ITLOS held there is no strict liability for every IUU act by flagged vessels; international responsibility arises only when the flag State breaches its own due-diligence obligations through attributable acts or omissions.
- On licensing by States or international organizations, ITLOS held issuance of a licence under an international agreement does not automatically trigger responsibility for vessel violations, but responsibility may arise if the State or organization fails to exercise due diligence in negotiating, concluding, or implementing the arrangement to secure compliance with applicable coastal-State measures.
- On coastal-State rights and duties for shared/common stocks, ITLOS confirmed coastal States’ EEZ sovereign rights to manage living resources, coupled with duties to ensure conservation and to cooperate (directly or through regional/subregional bodies) for shared and common-interest stocks.

## Legal Principles

- Advisory jurisdiction may be conferred on ITLOS through an agreement connected to UNCLOS and concluded among UNCLOS parties; a request may be admissible when it raises abstract legal questions rather than resolving particular disputes.
- Flag States have due-diligence duties to control vessels flying their flag and to take necessary and appropriate measures to prevent IUU fishing in other States’ EEZs, including regulatory, monitoring, and enforcement systems.
- International responsibility for IUU fishing is based on breach of the State’s own due-diligence obligations; it is not strict liability for private violations by vessels.
- States or international organizations issuing fishing licences may incur responsibility if they fail to exercise due diligence to ensure activities under an agreement comply with applicable conservation, management, and enforcement measures.
- Coastal States must exercise EEZ rights consistently with conservation duties and must cooperate in good faith for shared stocks and stocks of common interest, including by data exchange and coordinated conservation and enforcement measures.

## Conclusion

ITLOS clarified that combating IUU fishing under the law of the sea rests largely on due-diligence duties of flag States, coastal States, and (in appropriate circumstances) licensing States and international organizations; responsibility turns on a breach of those duties, not automatic attribution of vessel misconduct, and the opinion also confirmed ITLOS’s competence to render advisory opinions upon a request authorized by a UNCLOS-related agreement among UNCLOS parties.


Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Case No. 21, 2015 ITLOS Rep. 4 (Int'l Trib. L. Sea 2015)